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In re Accounting of Geraldine L. Thompson

Decided: February 18, 1969.

IN THE MATTER OF THE ACCOUNTING OF GERALDINE L. THOMPSON, LEWIS S. THOMPSON, JR., DECEASED, AND ELISABETH T. BABCOCK, AS TRUSTEES OF THE TRUST ESTABLISHED UNDER PARAGRAPH THIRD OF THE LAST WILL AND TESTAMENT OF LEWIS S. THOMPSON, DECEASED


For reversal -- Chief Justice Weintraub and Justices Francis, Schettino and Haneman. For affirmance -- Justice Hall. For remandment -- Justice Jacobs. The opinion of the court was delivered by Weintraub, C.J. Hall, J. (dissenting).

Weintraub

[53 NJ Page 277] The question is whether a testamentary gift to "lawful issue" of the testator's daughter includes a

child adopted by the daughter after the testator's death. The trial court held the adopted child did not take. We granted certification before argument in the Appellate Division.

The will was executed in 1935. The testator died the next year, survived by four natural children. One of them, Geraldine, had a natural child, Peter van Gerbig, and in 1943, seven years after the testator's death, Geraldine and her then husband, Rowan Boone, adopted an infant, Roger Boone. The immediate quarrel is between Peter, the natural child of Geraldine, and his adopted brother, Roger.

The will provided for the payment to testator's widow of the sum of $50,000 per year out of income, the remaining income to be divided equally among testator's "issue surviving * * * in equal shares per stirpes and not per capita." The testator directed that upon his widow's death the corpus be divided into shares, one for each of his children with the issue of a deceased child taking the parent's share per stirpes, and that upon the child's death, the child's share be paid "to the issue of such child him or her surviving, their heirs and assigns absolutely and forever in equal shares per stirpes and not per capita."

In 1948 the trustees filed their first intermediate account. The testator's widow was still alive and so also was the daughter Geraldine, mother of Peter van Gerbig and of Roger Boone. The New York law firm which had prepared the will and was counsel for the trustees sought advice from New Jersey counsel as to whether Roger Boone was a party in interest and was advised that an adopted child would not be regarded as "issue." Upon that advice Roger was not joined in the accounting.

In 1949 the daughter Geraldine died. On the basis of the advice just mentioned, the trustees thereafter paid her share of excess income to her natural child, Peter, and none to her adopted child, Roger. In 1950 Rowan Boone, adoptive father of Roger, consulted his own counsel as to whether Roger was entitled to take under the will, and by letter counsel advised that Roger was not "issue" and hence had no

interest. Rowan Boone sent a copy of the letter to New York counsel for the trustees.

The trustees continued the income payments to Peter until March 1967 when they filed their second intermediate account and expressly sought a determination of the interest of Roger and also of certain infants who are adopted great-grandchildren of the testator. In September 1967 testator's widow died, and thereupon the one-fourth of the corpus became payable to the "issue" of the daughter, Geraldine. Thus the controversy between Peter and Roger ripened with respect to the corpus as well.

Roger presses no claim against the trustees or Peter as to any payment already made, but asserts a claim to one-half of Geraldine's share of corpus and the retained income thereon. As we have said, the trial court found for Peter.

There is nothing within the will itself to indicate the testator thought of the problem and entertained a view as to whether an adopted child should take. Nor is there anything in the surrounding circumstances evidencing an awareness of the question. At our request the New York law firm which prepared the will submitted its entire file with respect to its preparation. The parties agreed that the record be deemed supplemented thereby. The file discloses no mention of the question whether an adopted child should take. The communications between the testator and the draftsman (now deceased) were only in terms of "children" and "grandchildren." And although the file shows that several questions of New Jersey law were researched in the preparation of the will, there was no mention of the meaning of "issue" generally or under New Jersey law. The file suggests strongly that the draftsman first looked into the subject in 1946 when the testator's widow raised the question.*fn1 We are

satisfied that no inquiry as to whether under New Jersey law "issue" would include an adopted child was made until 1946 and then again in 1948, when, as noted above, confronted with the fact that an adoption had occurred, counsel sought the opinion of a New Jersey lawyer.

I

This litigation was undoubtedly prompted by In re Coe, 42 N.J. 485 (1964). There the testatrix made a bequest to the "lawful children" of a girl for whom she felt the affection of a mother, and the question was whether two children that girl adopted years after the death of the testatrix were such "lawful children." We held they were, and expressly disapproved of a contrary dictum in In re Wehrhane, 23 N.J. 205 (1957).

In the present case the pivotal words are "issue * * * per stirpes " rather than "lawful children" involved in Coe. We said in Coe that we would find no difference between such terms, but since there had been prior decisions in our State holding that "issue" presumptively connoted a blood relationship, we would reserve the question whether because of reliance in fact upon such decisions there might be special equities precluding the application of what we are satisfied is the correct principle of law. We said, 42 N.J., at 494-495:

"Frankly we would not, as an original matter, distinguish among issue, descendants, children, and heirs, since ordinarily the word is not selected by the testator but rather by the scrivener, who, if he were conscious of the question whether adopted children should

be in or out, would elicit the testator's wish and express it unequivocally. The cases at most attributed but prima facie meaning to such words, and a competent draftsman would not deliberately pick a word which instead of controlling the context is easily colored by it. The caveat against that course has been unmistakable. Annotation, 86 A.L.R. 2d 12, 19 (1962).

But the immediate question is whether an equity might be shown in some circumstances with respect to the word 'issue' in light of our prior cases and perhaps also in light of the fact that L. 1953, c. 264*fn2 which we just quoted overturned the judicial view of issue prospectively only. As to the effect of prospective legislation upon the judiciary's responsibility for pre-existing situations, see In re Arens, 41 N.J. 364, 384-87 (1964). We think the sound course is to leave the question open so that the possible equities may be weighed in a specific setting."

II

Adoption laws were first enacted in the United States in the second half of the 19th Century. Adoption having been unknown to the common law, "issue" then necessarily connoted a blood relationship. So, too, did other words descriptive of a filial connection, and for the same reason. Hence one cannot draw upon cases which antedated an adoption statute to decide whether, in the absence of evidence of the testator's actual intent, the word "issue" should presumptively include only a natural child in the face of the legislative finding implicit in an adoption statute that people generally would want an adopted child to take.

The limited question we reserved in Coe is whether the word "issue" had a biological flavor not found in other words used to designate a filial relationship, and if so, whether reliance thereon could create equities sufficient to require us to attribute to "issue" a prima facie signification which we believe to be erroneous, i.e., that "issue" excludes an

adopted child. From our examination of the cases elsewhere and as well upon a review of the decisions in our State, we cannot suppose the draftsman of the will before us seized upon that word with an awareness of the problem and a purpose to exclude a child whom a child of the testator might later adopt.

It of course is not possible, within the limits of an opinion, to discuss all of the cases in this country. Nor is it necessary when the reason for the survey is to determine only whether a lawyer deliberately selected the unadorned word "issue" to state his client's insistence that only a natural child may take. Some broad brushes may be employed. Adoption laws, especially at the outset of this statutory development, varied, or were thought to vary, considerably with respect to the status or rights conferred upon the adopted child, and these statutory differences undoubtedly influenced the results reached in the cases. See Kales, "Rights of Adopted Children," 9 Ill L. Rev. 149 (1914); Oler, "Construction of Private Instruments Where Adopted Children Are Concerned," 43 Mich. L. Rev. 705 (1945). In this regard, we note that our original statute, which we will presently quote, provided in explicit terms that the relationship shall be "in all respects" the same "as if the child had been born to the adoptive parents in lawful wedlock," subject only to certain stated exceptions. Further a case holding that "issue" does not include an adopted child may reflect, not the special meaning of "issue," but rather an assumption that donors generally prefer the blood line, an assumption which would equally exclude the adopted child from all generic words of filial import. That assumption figures in the stranger-to-the-adoption concept which presumptively bars the adopted child, whatever the generic word used, except when the donor was the adoptive parent. That exception seems anomalous, for if donors harbor a preference for the blood line, one would expect it to be as compelling, or more so, when donors speak in terms of their own "issue." The anomaly may be only debatably so when the donor adopted

the child before executing the instrument, for it could be argued he would likely want to fulfill the parental obligation he had assumed by adoption, while on the other hand it could be urged that, being aware of the adoption, his use of a term of supposed biological import points to a conscious decision to exclude the adopted child. But when the adoption occurred years after the execution of the instrument, especially an irrevocable inter vivos trust, the anomaly seems evident, since it is difficult to suppose a donor intended "issue" to include a child he might adopt years later but to exclude a child adopted by a child of his own. At any rate, when an opinion involving the word "issue" reflects a judge's belief that people prefer the blood line, either generally or as to gifts to others, it cannot be assumed the decision turned upon the proposition that "issue" has a special biological flavor unless the opinion expressly differentiated that word from the other generic ones.

Our first adoption law was enacted in 1877 (c. 83) and the case is submitted on the premise that its terms control the present case. It is a strong statute, which, subject to limited exceptions, conferred upon the adopted child the status of a natural one. Its pertinent provisions appeared in R.S. 9:3-9 (since superseded by N.J.S.A. 9:3-30, enacted in 1953, c. 264, ยง 14), in these terms:

"Upon the entry of a decree of adoption, * * * the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or the distribution of personal estate, on the death of such adopting parent or parents, as if born to them in lawful wedlock; subject, however, to the limitations and restrictions hereinafter in this section set forth.

The adopted child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopting parent or parents by right of representation.*fn3

* * *

If the adopting parent or parents shall have other child or children, the children by birth and by adoption shall, respectively, inherit from and through each other, as if all had been children of the same parents born in lawful wedlock." The sweep of the statute appears even more clearly in its provision, R.S. 9:3-7, that the decree of adoption shall adjudge:

"* * * that the rights, duties, privileges and relations between the child and his parent or parents by adoption shall thenceforth, in all respects, be the same, including the right of inheritance, as if the child had been born to such adopted parent or parents in lawful wedlock, except only as otherwise provided in this chapter."

It is interesting to note that under the same statute it was held both in Massachusetts and Rhode Island, long before 1935 when the will here involved was drawn, that "issue" included an adopted child. It was so held in Sewall v. Roberts, 115 Mass. 262 (Sup. Jud. Ct. 1874). That case involved an irrevocable inter vivos trust created in 1825. The funds were deemed to be those of Robert Roberts, the designated life beneficiary. In 1865 Robert Roberts adopted a child. The court held that the adopted child was "issue" of Robert Roberts under the indenture even though the trust was created 40 years before the adoption and the trust was irrevocable. With respect to the statutory provision that an ...


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