This is an application by the guardian ad litem of two infant plaintiffs for the declaration of partial intestacy with respect to the estate of their adoptive father pursuant to N.J.S.A. 3A:3-11. Although defendants' counsel (acting for the two natural-born children of decedent) claims a question without specific precedent as to the effect of N.J.S.A. 3A:3-11 is presented by the facts that question does not involve the dispositive issue of the case. We will consider this issue first since defendants placed greater emphasis on it in their brief and argument.
The facts are not in dispute. The testator, Irwin Markowitz, had divorced his first wife by whom he had two children. He then married Robin Markowitz, who had two
daughters of her own born January 18, 1957 and June 9, 1959, respectively. On July 19, 1967 testator executed his will. By an order of adoption entered June 28, 1968, testator adopted his second wife's two children, who were then respectively 11 and 9 years of age.
Testator died on March 1, 1973 without making any change in his will. He made no specific mention of his adopted children, but by the second paragraph of the will he provided:
In the event that she [his second wife] predeceases me, I then direct my Executors, hereinafter named, in their sole and absolute discretion, (their decision to be final) to distribute the aforesaid chattels to my children, me surviving, as they deem fit and proper. * * *.
Plaintiff-guardian contends the two adopted children should be treated as though they were testator's natural children, born after the will was executed, and that the estate be distributed on the basis of partial intestacy as to them, claiming that the will neither provided for, mentioned nor disinherited them.
In support of his contention, plaintiff relies upon N.J.S.A. 3A:3-11 and N.J.S.A. 9:3-30. N.J.S.A. 3A:3-11 provides as follows:
If a testator, having any child born at the time of the making of his will, shall, at his death, leave any child born after the making thereof, or any issue of any such after-born child, such after-born child or his issue, if neither provided for by settlement nor disinherited by the testator, shall take the same share as if such testator had died intestate.
Toward raising any such share, the devisees and legatees and their representatives shall contribute proportionately out of the part devised or bequeathed therein to them.
N.J.S.A. 9:3-30 B. provides as follows:
The entry of a judgment of adoption shall establish the same relationships, rights, duties and obligations between the child and the adopting parent as if such ...