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Matter of Estate of Joseph Calogero

Decided: April 1, 1968.

IN THE MATTER OF THE ESTATE OF JOSEPH CALOGERO


For reversal and remandment -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Proctor, J.

Proctor

[51 NJ Page 346] The sole question before us is the legitimacy for inheritance purposes of a child, born out of wedlock, whose parents subsequently entered into a bigamous ceremonial marriage. Resolution of this problem hinges on the construction to be placed on the term "marry" in N.J.S. 3A:4-7:

"* * *

When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter." (Emphasis added.)

The case is submitted on an agreed statement of facts pursuant to R.R. 1:6-2. Joseph Calogero was born out of wedlock in the City of Burlington on July 12, 1907. Ten years later, in February 1917, his parents entered into a ceremonial marriage in Burlington. At the time of this marriage, Joseph's mother was still the wife of another man whom she had married in Italy in 1897 but with whom she had not lived since shortly after that marriage. No divorce was ever obtained dissolving the marriage in Italy. During his parents' lives, Joseph always was recognized as their son, both by them and their neighbors in Burlington.

On June 19, 1964 Joseph, a resident of the City of Burlington, died intestate. He never married and his parents predeceased him. The appellant herein, Joseph's first cousin on his father's side, was excluded from sharing in the distribution of Joseph's estate. The County Court ruled that the bigamous marriage of Joseph's parents did not remove his illegitimacy and therefore participation in the distribution of his estate was limited to his maternal relatives. The appeal from the County Court was certified by us before argument in the Appellate Division.

The issue of the legitimating effect of an invalid marriage previously has been before our trial courts where opposite conclusions were reached. The Burlington County Court in In re Weeast, 72 N.J. Super. 325 (1962) construed the word "marry" in N.J.S. 3A:4-7 to mean a valid marriage and held that a child born of a meretricious relationship was not legitimated by the subsequent bigamous ceremonial marriage of her parents. Taking a contrary view, the Chancery Division in L. v. L., 92 N.J. Super. 118 (1966) broadly construed "marry" to include a ceremonial but bigamous

marriage and concluded that children born prior to such marriage of their parents were to be deemed legitimate under the statute.

We hold that the word "marry" as used in N.J.S. 3A:4-7 embraces all ceremonial marriages, whether valid or not. That this construction accords with the legislative intent is demonstrated by the revision of the statute in L. 1951, ch. 345. The predecessor statute, R.S. 3:5-8, provided as follows:

"If the father and mother of a child born out of lawful wedlock subsequently enter into the bonds of lawful wedlock and cohabit thereafter as husband and wife and such child shall have resided with and been recognized and treated by such parents as their child, such child shall be entitled to share in the estate of such father and mother equally with children born of a lawful marriage of the intestate. * * *" (Emphasis added.)

When the present statute was enacted, the old language "lawful wedlock" was replaced by the more general term "marry," the requirement of cohabitation was eliminated, and no longer was it necessary that the child reside with the parents.*fn1 The notes to the revision state that the purpose for the change was "the elimination of the conflict between R.S. 3:5-8 and 9:15-1." Report, Advisory Committee on Revision of Statutes; Suggested Changes in the Tentative Draft of the Revision of Titles 2 and 3 and Sections of Other Titles of the Revised Statutes of New Jersey, comment to N.J.S. 3A:4-7 (Draft No. 3A:4-6). N.J.S.A. 9:15-1, part of the general legitimacy statutes, provides:

"Any child heretofore or hereafter born out of wedlock shall be legitimated by the intermarriage of his natural parents and their recognition and treatment of him as their child. A child so legitimated is entitled to all rights and privileges which he would have enjoyed had he been born after the marriage, his ...


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