[140 NJSuper Page 37] This case raises, but in a different setting, the same general question as was raised in In re Comly , 90 N.J. Super. 498 (Cty. Ct. 1966), that is, whether an adopted adult is a child of the adopting parent within the meaning of a will of a third person, a "stranger to the adoption," which provides that upon the death of the life tenant
(the adopting parent) the remainder shall be paid to his children or issue of deceased children.
Testator Harold E. Griswold died on July 8, 1952 a resident of Morris County, leaving a will which was executed on October 20, 1950. The will was admitted to probate by the Morris County Surrogate on July 21, 1952. Testator was survived by two sons, Alfred Whitney Griswold and Harold Ely Griswold, Jr. (who was known as "Ely" and will be so designated herein to distinguish him from his father). The will divided the residue equally between two trusts, one for the benefit of son Alfred for his lifetime and one for the benefit of Ely for his lifetime. The remainders of each trust were left to "such children or issue of deceased children of my said son as shall then be living, per stirpes." Each trust provided for gifts over in the event of death of the life tenant without leaving a child or issue of a deceased child.
Alfred died in 1963 leaving his wife Mary and their four natural children.
At the time of the execution of the will Ely was married but having marital difficulties, and this was known to his father. He obtained a divorce in February 1951. There were no children of that marriage. In 1946 or 1947 Ely had begun a relationship with Adrienne Moore. From 1947 on they had been living together or in adjoining apartments, until 1955 or 1956 when they were married. His wife had been previously married and had a son, Martin Trester Dyke, 3rd, who was born on August 7, 1924. He was about 31 years of age at the time of his mother's marriage to Ely. Ely was living in California during this period.
In 1963, at the suggestion of a California attorney, Ely began to consider the advisability of adopting his wife's son, Martin Dyke. Dyke was married, had three children and was living with his family in Tennessee or elsewhere in the Eastern or Southeastern United States. He had left California in 1949.
Ely decided to go ahead with the adoption. Dyke consented thereto and proceedings were instituted in California. Subsequently a judgment of adoption was entered in Superior Court, Orange County, on October 18, 1965. At the time of the adoption Dyke was 41 years old and Ely was 56. Ely was born September 8, 1909 and was thus one month shy of the 15-year age differential which is required under the New Jersey statute.
Ely's wife, Adrienne Moore Griswold, died on January 22, 1973. There were no children of that marriage. Ely died on December 22, 1973, leaving no spouse or natural children or issue, but survived by Martin Dyke, his adopted son.
Upon the death of Ely the surviving trustee of his trust filed its fourth and final account and in connection therewith sought instructions as to the final distribution of the principal and accumulated income of the trust. Claims thereto are made by the four surviving children of Alfred Whitney Griswold and by Martin Trester Dyke, 3rd, the adopted stepson.
The primary objective is to ascertain the probable intention of the testator. Where such intention can be determined from the language of the will or from the attending circumstances, that intention should be given effect. Fidelity Union Trust Co. v. Robert , 36 N.J. 561 (1962); Bank of New York v. Black , 26 N.J. 276 (1958); In re Coe , 42 N.J. 485 (1964); In re Estate of Burke , 48 N.J. 50 (1966); In re Thompson , 53 N.J. 276 (1969); Wilson v. Flowers , 58 N.J. 250 (1971).
In this case there is nothing in the will itself nor in the surrounding circumstances to establish that the subject of adult adoptees as "children" of testator's sons was discussed by testator with his counsel or specifically considered by them. The search for probable intent must therefore be based upon a consideration of the language of the will, all of the relevant facts and circumstances in respect to the testator,
and the application and effect of In re Coe, supra , and of N.J.S.A. 2A:22-3.
The adopted child, Martin Trester Dyke, 3rd, argues that he is entitled to take under this will under the holding of In re Coe, supra , and upon a correct construction of N.J.S.A. 2A:22-3 and the history of that statute. The four surviving children of Alfred Whitney Griswold, who would take the remainder unless Mr. Dyke takes, contend that testator's probable intention would be to exclude the adopted adult; that the adult adoption statute differs in significant respects, and historically, from the minor adoption statute (now N.J.S.A. 9:3-17 et seq.), and should not be construed to mean that an adopted adult qualifies as a child of the adopting parent under the will of a stranger to the adoption; that the law existing at the time of the execution of the will should govern the case, and finally, that the adoption of Dyke was for the purpose of defeating a testamentary disposition and is a fraud as a matter of law.
The trustee takes a nonadversary position but made an extensive presentation with respect to the law applicable to the case, discussed the problems of fiduciaries in connection with questions regarding adult adoptees, and requested that the court make a determination applicable to all cases of adult adoptees, either that they take as children or issue under a third person's will or they do not.
This court concludes as follows:
(1) The law of New Jersey governs the case;
(2) The language of the will, together with the attending circumstances, require a conclusion that testator's probable intention would be to exclude the adopted adult as a child of testator's son Ely;
(3) The Coe case is not fully applicable to the situation of the adult adoptee and does not indicate or require a finding that there is a presumption that the adult adoptee would take as a "child" of the adopting parent under this testator's will;
(4) N.J.S.A. 2A:22-3 should not be construed to constitute the adopted adult a child of the testator's son Ely under this will and
(5) In any event, this adoption is an abuse of the adoption process and of testator's will and, in that sense, a "fraud" within the meaning of In re Coe.
It is recognized that these subjects become intermingled and to some extent overlap each other, but it may be helpful to discuss them separately. That is, probable intent is a concept dealing with the testator's state of mind but the determination of it must sometimes rest on the existence or nonexistence of a presumption, either statutory or otherwise, and the ultimate determination may depend upon whether there is a presumption and, if so, what the presumption is and whether the surrounding circumstances are such as to indicate a contrary intent and overcome the presumption.
THE LAW OF NEW JERSEY IS APPLICABLE
The trust here in question has a situs in New Jersey. The adoption took place in California. Assuming that the adoption in California was valid under the laws of that state, it is entitled to recognition in the State of New Jersey, but the legal incidents and effects of that status with respect to property in New Jersey are to be determined by the laws of this State. Dulfon v. Keasbey , 111 N.J. Eq. 223 (Ch. 1932); Zanzonico v. Neeld , 17 N.J. 490 (1955). In Zanzonico the court said:
The adoption here offends New Jersey policy in regard to the required age differential of 15 years, but the deficiency is slight, the offense to policy is minimal, more important questions of policy are involved in the case, and the decision here should not turn on that issue.
THE PROBABLE INTENT OF TESTATOR
There being nothing in the language of the will which by itself reveals a clear intent to either include or exclude an adult adoptee, and nothing to indicate that the subject was either discussed or considered, it is probable that the subject was not thought about and that there was therefore no specific intent of either the testator or the draftsman of the will, an experienced and competent attorney. The attorney's files were examined.
However, there are some elements of the will which give some indication of what the probable intention would have been if the matter had been thought about. To begin with, the ordinary meaning of the word "child" is a natural child. To equate a 41-year-old man, not related by blood, to a natural born grandchild is a strain and a legal fiction. In this will testator made a clear, striking and definite distinction between his two sons. It is clear that the difference was based upon a difference in their positions, accomplishments, life style and responsibility. One had advanced as a prominent and respected figure in the educational world. His wife and children were regarded with affection by testator. The other had no such record or prospects and had a wife who was apparently a source of pain and concern to both testator and son Ely; he had no children.
The pattern of the will is clearly to provide income for testator's two sons during their respective lifetimes and then primarily to the children of each son or the issue of any child of such son who may have died prior to the death of his father. At the time of the will son Alfred had a wife living and natural children. Ely had a wife with whom he was having marital difficulties and had no children. The trust for Alfred provided that upon his death the corpus and income of the trust should be paid to such of his children or issue of deceased children as should then be living, per stirpes. It further provided that if, upon the death of Alfred, there should not be living any child, or issue of a deceased child, of Alfred then the remainder should be paid to Alfred's wife Mary. Upon the failure of all of those gifts the remainder was to be paid to "Harold Ely Griswold, Jr."
The trust for Ely had some significant differences. Upon the failure of children of Ely or of issue of a deceased child of Ely, there was no provision for any wife Ely might then or thereafter have. Accordingly, the gift over was that if, upon the death of Ely, there should not be living any child, or issue of deceased child, of Ely, then the remainder was to be paid to "my son, Alfred Whitney Griswold or if he shall not then be living to his then living issue, per stirpes."
In addition, the trust for Ely was in the nature of a spendthrift trust and directed the trustees to pay over to him "so much of the net income then remaining as my trustees, in their sole, absolute and uncontrolled discretion, shall see fit to give him, it being my intention in setting up this discretionary trust to restrain voluntary alienation of the income and principal thereof by my said son, Harold Ely Griswold, Jr., and to exempt his interest thereunder from the claims of his creditors." It was also provided that if Ely should become ill and the income be insufficient to provide for his proper medical and hospital care, the trustees were authorized to use and apply so much of the principal
of the trust from time to time as they in their discretion deem necessary for such purpose.
In the event of the death of the individual trustee, Edward K. Mills, Jr., the will named Alfred as substituted executor or trustee in his place. Ely was not so named as a substitute trustee, either of Alfred's trust or his own.
The pattern with respect to Ely's trust was to pay him so much of the income as the trustees saw fit to give him, to use principal if necessary, but to protect his interest in the trust from the claims of his estranged wife and other creditors and "to restrain voluntary alienation of the income and principal thereof by my said son." The purpose was to prevent disposition of the principal by Ely in his lifetime.
The will demonstrates an intention of testator to dispose of his entire estate. He did not leave the choice of remaindermen to the life beneficiaries but specified them. The class specified was "children or issue of deceased children" and the gift over in Ely's trust to testator's grandchildren was to take effect if "there shall not be living any child or issue of deceased child" of son Ely. It appears probable that testator's intent was that child or issue meant related to the family by blood and not otherwise.
There are other circumstances which throw light on the testator's probable intent. He had made a previous will on May 14, 1946. That will left the remainder of the estate in two equal parts, Part A to be paid outright to son Alfred and Part B in trust for son Ely during his lifetime, with the remainder to Harold "children or issue of deceased children" and, if none, to son Alfred if alive or to son Alfred's then living issue. This will also provided a power of appointment with respect to Alfred's half, to be exercised by Alfred's will and operative in the event Alfred predeceased testator. There was no such power of appointment provided with respect to Ely's trust. This indicates not only that testator was aware of and made use of the device of a power of appointment but also that he was unwilling
to allow Ely to control the disposition of the assets of his trust.
Testator also executed a will on June 29, 1948. This will divided the remainder into two equal trusts, one for the benefit of Alfred for his lifetime and one for the benefit of Harold for his. It appears that the reason for changing the provision for Alfred from an outright gift, with a power of appointment, to a trust with remainder to his children was for tax reasons; he anticipated a substantial inheritance from another family source. The remainder of each trust was left to the children or issue of deceased children of the life beneficiaries. In Alfred's trust, in default of his leaving any child or issue of a deceased child the remainder was given to Alfred's wife, Mary Brooks Griswold, or if she should not then be living, to Harold. The trust for Ely was in similar terms but provided that upon the death of Ely without leaving any child or issue of a deceased child, then the remainder should be paid to Alfred, or if he should not then be living, to his then living issue, per stirpes.
On October 26, 1950, six days after executing the will here in question, the testator wrote a birthday letter to his ...