Lynch, Milmed and Antell. The opinion of the court was delivered by Lynch, P.J.A.D.
Dennis Dussell, a child born out of wedlock to Winona "Dussell" and Leonard J. Dussell, Sr., deceased, appeals from a judgment which held that since his parents never married, N.J.S.A. 3A:4-7 did not entitle Dennis to share by intestate succession in the estate of his putative father or to receive letters of administration for that estate. The trial judge also rejected his contention that N.J.S.A. 3A:4-7 was unconstitutional. Defendant appeals this ruling.
Trial counsel for Dennis apparently was not aware of the provisions of N.J.S.A. 2A:34-20. For the first time on
appeal appellate counsel now additionally contends that said statute effected legitimation of Dennis by reason of an alleged common law marriage between Winona and Leonard in Pennsylvania.
We agree with the trial judge's decision that N.J.S.A. 3A:4-7 is constitutional. Labine v. Vincent , 401 U.S. 532, 91 S. Ct. 1017, 28 L. Ed. 2d 288, reh. den., 402 U.S. 990, 91 S. Ct. 1672, 29 L. Ed. 2d 156 (1971). However, since the judge did not consider the effect of N.J.S.A. 2A:34-20, we must do so here. Since trial counsel for Dennis was unaware of the provisions of that statute, there was no testimony taken as to whether Winona and Leonard had in fact entered into a common law marriage in Pennsylvania. Therefore, we will assume arguendo that there was such a marriage in order to consider the issue of whether the statute would legitimate Dennis if such marriage existed.
N.J.S.A. 2A:34-20 in its current revised form was a corollary to the passage of the 1971 Divorce Reform Law. It reads as follows:
A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child have entered into a civil or religious marriage, or shall have consummated a common-law marriage where such marriage is recognized as valid, in the manner authorized by the law of the place where such marriage takes place, is the legitimate child of both natural parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.
Nothing in this amendatory act shall be deemed to affect the construction of any will or instrument heretofore executed or any property right or interest or right of action vested or accrued or to limit the operation of any judicial determination containing an express provision or provisions with respect to the legitimacy, maintenance or custody of any child, or to affect any adoption proceeding heretofore commenced, or limit the effect of any judgment or order entered in such adoption proceedings.
The alleged common law marriage between Winona and Leonard was entered into in the State of Pennsylvania. Since that state recognizes common law marriages, Dennis claims he is legitimated by the operation of the statute and therefore
is entitled to share in his father's estate and to be granted letters of administration therein. Respondent, a legitimate child of Leonard and his previous wife Margaret, seeking to administer her father's estate, points out that it is stipulated between the parties that any alleged union between Winona and Leonard was bigamous because neither Winona nor Leonard had been divorced from their previous spouses. With respect to this contention Dennis argues that he is legitimated by a common law marriage in Pennsylvania, as the statute says, "notwithstanding that such marriage is void," and therefore, even if the said marriage was bigamous, he is not deprived of the benefit of the statute.
It is irrefutable that our court have construed statutes pertaining to legitimation of children quite liberally in order to spare children who are innocent of any wrongdoing from ...