For affirmance -- Chief Justice Weintraub and Justices Francis, Proctor, Schettino and Haneman. For reversal -- Justices Jacobs and Hall. Jacobs, J. (dissenting). Hall, J. (dissenting).
The testator died in 1929. By his will made in 1925 he provided for his widow for life, and for each of his children for their lives, with the corpus of each child's trust to go to that child's "descendants * * * per stirpes." His daughter Lucia and her husband adopted two children, one in 1934 and the other in 1938, both less than two years of age at the time of adoption. Lucia died in 1967, and the question is whether her adopted children take or whether there is gift over to Lucia's brother, her two sisters, and children of three brothers who predeceased her. The trial court held for the adopted children. We certified the appeal before argument in the Appellate Division.
The judgment is correct. The case is controlled by In re Coe's Estate, 42 N.J. 485 (1964), and In re Thompson's Will, 53 N.J. 276 (1969). Here the word used is "descendants," but we see no difference in this connection between that word and "issue" (the will here also used "issue") or "children." "Descendants," no less than "issue" and "children," is mute with respect to the inclusion or exclusion of adopted children.
Nor are the surrounding circumstances revealing. We are asked to find an intent to exclude the adopted children
upon the basis of testimony of testator's cousin and a book the testator authored and published privately. As to the cousin, he never discussed adoption with the testator. His "opinion" was that the testator would not have wanted an adopted child to take, and this in part on the premise that he and the deceased thought alike. Curiously, when the witness was asked whether, if he had adopted grandchildren, he would exclude them from his beneficence, he was unable to say unconditionally that he would. We see no evidential value in that testimony.
As to the book, it is clear the testator was tremendously proud of his Pilgrim and Puritan stock with its English antecedents, and conscious of genealogical influences. But pride in blood stock is neutral as to adoption. Many men are proud of their heritage, national, ethnic, religious, or racial, and attribute signal qualities to that inheritance. There is no reason to impute to every such man the unnatural intent to disinherit children his daughter takes for her own.
We invited counsel to present whatever help the files of the draftsman, or the practice of his firm, might offer. We are told that nothing relevant has been uncovered. Counsel, however, refers us to excerpts from two books by New York authors, no doubt because the will was drawn by a law firm of that State. Both books say that such words as children, issue, or descendants will not usually include an adopted child. Remsen, The Preparation and Content of Wills (1907), pp. 96-98; Davids, New York Law of Wills (1924), pp. 1080-1081. As to this, we note that neither author anticipated Matter of Park's Estate, 15 N.Y. 2 d 413, 260 N.Y.S. 2 d 169, 207 N.E. 2 d 859 (1965), and Matter of Silberman's Will, 23 N.Y. 2 d 98, 295 N.Y.S. 2 d 478, 242 N.E. 2 d 736 (1968), wherein the New York Court of Appeals held that a presumption exists in favor of an adopted child whether the word heir, child, issue, or other generic term expressing the parent-child relationship is used. Park so held with respect to a will of a man who died in 1909.
We find of special interest that the cited book by Remsen, written in 1907, gave this instruction to the draftsman (p. 97):
"In the case of adopted children, the testator should express clearly his intentions to include or exclude without relying on any statutory words defining the rights or status of such children. * * *"
This sustains the conviction we expressed in Coe, supra, 42 N.J., at 494, and Thompson, supra (53 N.J., at 291), that no competent draftsman would deliberately select any of the words we have mentioned to execute his client's purpose to exclude an adopted child.
There being no evidence of the testator's actual intention, we should follow the policy of the adoption law enacted in 1877, almost 50 years ...