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Matter of Estate of Cora Talmage Wehrhane

Decided: April 1, 1977.


Lester, J.s.c.


This case comes before the court on the third intermediate accounting of the trust under the will of Cora T. Wehrhane. One a prior accounting the New Jersey Supreme Court held that a provision in a will leaving property to "issue" of another is presumed not to include the adopted child of the daughter of the testatrix. We are now asked to reconsider the question based on subsequent changes in the decisional law of this State. The case raises a substantial, if not altogether novel, question of the duty of a court to enforce a prior holding, the legal reasoning of which having been undermined by later rulings.

Mrs. Wehrhane died on March 13, 1925, and her will was admitted to probate soon after. Letters testamentary and of trusteeship were issued to her husband, Henry H. Wehrhane, who remained executor and trustee until his death in 1950, whereupon plaintiff was appointed successor trustee.

Mrs. Wehrhane's will, bearing the date January 5, 1925, provided for payment of her residuary estate to the trustee in trust, to pay the net income first to Mr. Wehrhane for life and then to her daughter, Dorothy Wehrhane Lord, for life. After the death of the daughter, this fund was designated to go to the "issue" of the daughter, per stirpes , and if no issue, to be divided in a specified proportion between Dorothy's husband, if living; Doris M. McGovern, decedent's cousin, and six charitable institutions. If Dorothy left no husband or issue, the husband's share would be shared between Doris M. McGovern and Maud Pilkington Blacker.

On January 14, 1931, nearly six years after the death of testatrix, Dorothy and her then husband adopted a son, who was named John Gardiner Lord. The daughter, up until the

adoption and thereafter, had no natural children. At the time of the filing of plaintiff's first accounting for the period March 13, 1950, to May 3, 1954, on October 22, 1954, the adopted son, John Gardiner Lord, on behalf of himself and his infant children, filed a complaint in the Chancery Division seeking to establish his interest in the estate as "issue" of his mother Dorothy, as the term was used in the will of Cora T. Wehrhane. The cases were consolidated and, after trial, it was determined by Judge Drewen, J.C.C. temporarily assigned, that the adopted son did not qualify as "issue" under the will of Cora T. Wehrhane to claim any interest in the estate. Judge Drewen held Doris McGovern and the six charities to have vested remainder interests, subject to divestment by the birth and survival of a natural child of the daughter of decedent. In re Wehrhane's Estate , 41 N.J. Super. 158 (Ch. Div. 1956), aff'd 23 N.J. 205 (1956) (Weintraub, J., dissenting) (hereinafter Wehrhane I). In view of this decision, the adopted son had no participation in the second accounting for the period May 9, 1954 to September 13, 1961, approved April 19, 1963. Subsequent New Jersey Supreme Court cases changed the state of the law as it was announced in Wehrhane I , holding that the terms "children" and "issue" in a will included adopted children, in the absence of language or evidence evincing a contrary intent, even for wills executed prior to the passage of reform legislation. In re Coe , 42 N.J. 485 (1964); In re Thompson , 53 N.J. 276 (1969).

In the present complaint for the third intermediate accounting, Paragraph 11 states that by virtue of the subsequent changes in New Jersey law, as announced by the Coe and Thompson decisions, the court should make a determination whether John Gardiner Lord and his issue qualify as issue of Dorothy Wehrhane Lord (now Nicholas) within the meaning of the will of Cora T. Wehrhane.

The opinion of Justice Oliphant in Wehrhane I stated the applicability to the case at bar of the "stranger-to-the-adoption rule." This rule provided that a gift made to children

or issue of another "is presumed not to include an adopted child or children * * *" (Wehrhane I, supra , 23 N.J. at 208) a presumption which may be rebutted by other language in the will or "circumstances surrounding and existent at its execution or the death of the testator." Id. In the remainder of the opinion Justice Oliphant endeavored to find any such language or factual circumstance that might disturb the presumption of exclusion. He found none. In his scrutiny of will terminology he found, to the contrary, that use of the term "issue" was a term deliberately used by the draftsman to exclude the possibility of adopted children taking under the will.

The evidence adduced by Mr. Lord in an attempt to rebut the presumption of exclusion was that the will indicated a design to benefit the persons nearest and dearest to Mrs. Wehrhane's daughter. This evidence was found inadequate by the court, which cited that there was no evidence that Dorothy would not have a natural child or that it was present to Mrs. Wehrhane's mind that any plans for adoption were contemplated. In addition, the court was unpersuaded by expert opinion that grandparents ordinarily do not discriminate against their adopted grandchildren by noting the portion of the expert testimony in which it was remarked that attitudes toward adopted children have changed considerably in the last 25 years. Wehrhane I, supra at 210, 211.

The court rejected the view that the operation of the exclusionary presumption may be altered by the existing adoption statute which gave adopted children full rights to inheritance. R.S. 9:3-9, as superseded by N.J.S.A. 9:3-30. The court specifically found that this statute, adopted in 1877, not to have created

Justice Weintraub, in his dissenting opinion, vigorously disputed the view of the majority of the applicability of the 1877 adoption statute and the exclusionary presumption. It was not until the composition of the court changed and Justice Weintraub assumed the position of Chief Justice that the jurist's views became law. In re Coe, supra , rejected the dictum in Wehrhane I that use of the term "children" brought into play the stranger-to-the-adoption exclusionary presumption. More importantly, it recognized the 1877 adoption statute as embodying a rule of construction by which adopted children are presumed to share in any testamentary bequest unless a contrary intent is manifested. Coe explicitly refused to extend the Wehrhane I exclusionary rule to apply to use of the term "children" but did not overturn the Wehrhane I rule as it applied to the use of the term "issue." The court concluded (42 N.J. at 495), "In summary, then, we will not extend Wehrhane and if that case is to be followed at all, it will be confined to its precise holding."

In In re Thompson, supra , the court, again led by Chief Justice Weintraub, was faced with the construction of a will executed in 1935 wherein property was devised to the "lawful issue" of the daughter of the testator. The Wehrhane I approach, which was understood by the Thompson court to be that use of the term "issue" brought into play the stranger-to-the-adoption exclusionary presumption, was rejected and was replaced in Thompson by an inclusionary presumption by operation of the 1877 adoption statute. The court also rejected the view advanced in In re Fisler , 133 N.J. Eq. 421 (E. & A. 1943), that the term "issue" meant heirs of the body. Thompson, supra , 53 N.J. at 299.

It is contended on behalf of Mr. Lord that the Wehrhane I decision was, and is, bad law and that a court should not in good conscience deprive the adopted son of his inheritance in deference to an ill-conceived decision. Defendants dispute the characterization of Wehrhane I as bad law and, further, maintain that the essential legal doctrines of res judicata and collateral estoppel operate to prevent any relitigation at the present time.

It is clear that insofar as Wehrhane I was based on the operation of legal presumptions, it has been not merely distinguished or limited but overruled.

As stated previously, the legal presumption of exclusion of adoptees utilized in Wehrhane I was limited to construction of the term "issue," but that the exclusionary presumption finally gave way to the opposite presumption of inclusion in Thompson, supra at 298. Of course, essential to this progression was the holding of Coe that the 1877 adoption statute represents a rule of construction, despite language in Wehrhane I to the contrary. Coe, supra , 42 N.J. at 489.

If Wehrhane I were based solely on the operation of a legal presumption of exclusion, there would be no question that Wehrhane I was indeed "bad law" in that it has no precedential value under the doctrine of stare decisis. However, it is argued by the remainderman that Wehrhane I rests on an alternate ground for its decision -- the actual intent manifested by the testatrix. Those who would uphold Wehrhane I place particular reliance on this aspect of Wehrhane I , arguing that while Wehrhane I's pronouncement of the law may have come into disrepute with the passage of time, its conclusions of fact with regard to Mrs. Wehrhane's testamentary intent has not been, nor can be, subject to challenge.

The operative language in Wehrhane I setting forth the alternate grounds of the decision must ...

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