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Matter of Estate of William F. Cory

Decided: December 8, 1967.


Mintz, J.s.c.


Plaintiff Fidelity Union Trust Company, surviving trustee under the will of the late William F. Cory (testator), seeks allowance of its final account and instructions respecting distribution of the corpus. At oral hearing the account was allowed and various instructions given. There remains for determination the question whether Cory N. Jervis (adoptee), the adopted child of testator's daughter Helen N. Jervis, is entitled to share in the corpus distribution under paragraph Fifth of testator's will.

Testator died January 24, 1929, survived by two daughters, Madalon Denny and Helen N. Jervis. In paragraph Fifth of the will he disposed of the residue of his estate and provided for life estates in the form of income annuities to his two daughters. Each life tenant was to receive $500 each quarter year if she had a husband living and $900 each quarter year if she did not. Each daughter was to receive an additional $50 each quarter year for each minor child under 15, and an additional $100 each quarter year for each minor child between 15 and 21 years of age. The testator further provided therein that if any grandchild attends a college, university or technical school, the trustees may in their discretion pay the expenses of such course of education or contribute towards the same from the net income

of the residuary estate. The testator further declared in said paragraph that:

"From and after the decease of my said daughters Madalon Denny and Helen Neville Jervis and their respective husbands Robert C. Denny and Victor R. Jervis (all four of them being deceased), I give, devise and bequeath my said residuary estate, * * * in equal shares to the children then living of both my said daughters, * * *."

Madalon Denny died June 19, 1946. Helen N. Jervis died November 9, 1966. Their respective husbands are deceased, so the time for corpus distribution has arrived, except for the sum of $12,000 to be retained to provide income payments for life to a nephew, Frank B. Cory. The corpus now available for distribution will exceed $900,000.

Madalon Denny left one child, defendant Helen Denny. Helen N. Jervis is survived by five natural born children, Marjorie C. Jervis, Barbara J. Buchanan, Berwyn J. Binkley, Ogden W. Jervis and Winston H. Jervis, all defendants in this action. Testator executed his will on May 10, 1926. Shortly before that date Helen N. Jervis, to the knowledge of testator, brought a foster child into her home with the intention of legally adopting him. On December 31, 1929, approximately 11 months after testator's death, Helen and her husband Victor Jervis formally adopted Cory N. (nee Grady) Jervis, a party defendant herein, by order of the Duval County Circuit Court, Florida. The adoption order provided that the effect of the adoption as to "inheritance and all other legal incidents and consequences shall be the same as if he had been to [the Jervises] in lawful wedlock born."

As stated, testator died January 24, 1929. During the early years of the trust's administration the quarter-annual payments called for in paragraph Fifth were made by the trustees to the daughters Madalon Denny and Helen N. Jervis, but no payments were made to Mrs. Jervis on account of her adopted child. At Mrs. Jervis' urging, John C. Cory and Fidelity Union Trust Company, as surviving

trustees, instituted an action on April 26, 1939 in the former Court of Chancery of New Jersey for construction of the said will and certain instructions. The trustees' complaint asked the court to:

"* * * construe the will of William F. Cory, deceased, and declare the rights of the parties thereunder and advise the complainant trustees, (a) whether Helen Neville Jervis is entitled to an additional payment each quarter year out of net income for and on account of Cory N. Jervis, her adopted son, to the same extent as if he were her own issue; (b) whether Cory N. Jervis is a remainderman under said will, being included in the class designated by testator as the children of his daughter, Helen Neville Jervis; and (c) whether Cory N. Jervis is included in the class designated by testator as his grandchildren so as to entitle said Cory N. Jervis to share in the benefits conferred upon that class by said will [educational expenses]."

Helen N. Jervis, Cory N. Jervis and other interested persons were joined as defendants in the action. William F. Delaney, a member of the New Jersey bar, appeared as solicitor for Helen N. Jervis and as guardian ad litem pro se for Cory N. Jervis, who was then 13 years of age. The guardian ad litem filed an answer for the adoptee and in general actively participated in the litigation in his behalf.

The late Vice-Chancellor Berry rendered a written opinion in which he decided the testator had not intended the adoptee to take under his will. The Chancellor's final decree of February 13, 1940 determined that Helen N. Jervis was not entitled to additional quarter-annual payments out of net income from the residuary estate on behalf of Cory, and that Cory was not a remainderman under the will, i.e. not included in the class designated by testator as the "children" of his daughter Helen N. Jervis. No appeal was taken from that decree.

Now that Helen N. Jervis, the last life tenant, has died, the corpus is presently distributable. The surviving trustee seeks instructions as to the adoptee's rights to take as a remainderman under William F. Cory's testamentary trust. This request is made in light of In re Coe, 42 N.J.

485 (1964). The court there held that an adopted child is presumptively included within a testamentary provision for the "child or children" of a designated person unless the testator indicates a contrary intent. Coe expressly rejected earlier decisional law which held that there was a presumptive exclusion against later adopted children in wills executed by "strangers to the adoption." The rule enunciated in Coe is applicable whether the adoption of the child took place in New Jersey or in another state. Munson v. Johnston, 16 N.J. 31, 34 (1954).

The natural born remaindermen argue that the 1940 Chancery decree is res judicata or, in the alternative, constitutes a collateral estoppel on the issue of testator's intent to benefit the adopted child under paragraph Fifth of said will.

The adoptee argues that for a variety of grounds, primarily prematurity of Vice-Chancellor Berry's decision as to future corpus distribution and the minority of Cory at that time, relief should be granted from the 1940 Chancery decree and instructions fashioned in accordance with Coe.

The bill of complaint and the decree in the 1939-1940 Chancery proceeding, as already noted, dealt with Cory N. Jervis' future rights as a remainderman, although the immediate issues were his mother's rights to receive additional income payments on his account.

The courts have made various pronouncements respecting prematurity. In Ogden v. McLane, 73 N.J. Eq. 159 (Ch. 1907), it was declared that:

"* * * This court will not instruct trustees in regard to their duty with respect to the payment or transfer of the trust estate in their hands until the time for such payment and transfer has arrived. * * *" (at p. 161)

Similarly, in Kellogg v. Burnett, 74 N.J. Eq. 304, 309 (Ch. 1908), the court held that it cannot "be induced to give counsel and advice to the parties" about corpus distribution

until the time for such distribution arrives -- in the instant case at the death of the life tenant.

A less restrictive view was taken in In re Hosford, 26 N.J. Super. 412, 421 (App. Div. 1953). The court there said that ripeness of a controversy for judicial decision is largely a matter of discretion, but that the "greatest strictness" is observable in scrutinizing a court's jurisdiction to make binding declaratory judgments on future rights. Cory N. Jervis' controverted remainderman status in 1939-1940 was just such a future right. The adoptee argues that due to his minority, the Court of Chancery should not have determined his future rights in the corpus.

Persuasive arguments, however, can be argued by those asserting res judicata as a defense. One may contend that a ruling on the adoptee's exclusion or inclusion in the class of "children" of testator's daughters in the income payments dispute conclusively disposes of the adoptee's membership in the same class for corpus distribution purposes. If Mrs. Jervis was not entitled to any income payments on account of Cory because he was not her natural-born child, it necessarily follows that Cory would not in the future be entitled to any corpus distribution. Therefore, a decision encompassing a disposition of the adoptee's right to corpus would fall within the court's discretionary ambit.

An aspect of this discretion was elaborated by the court in Schumacher v. Howard Savings Inst., 128 N.J. Eq. 56 (Ch. 1940), ...

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