Morton I. Greenberg, J.s.c.
On May 25, 1977 plaintiff Sara Craig offered for probate in this court in the common form the will of her son Willie J. Sharp, dated January 11, 1958, who had died January 18, 1977 a resident of Trenton, New Jersey. As to jurisdiction, see N.J.S.A. 3A:2-1; N.J. Const. (1947), Art. VI, § III, par. 2; Art. XI, § IV, par. 3; Rogazinski v. Rogazinski , 109 N.J. Super. 138 (Ch. Div. 1970). Her complaint recited that Sharp left no spouse surviving and that his heirs under the will and next of kin were plaintiff and an aunt and first cousin. The will itself was ambiguous and would, if probated, require judicial construction. For purposes of this opinion it is sufficient to indicate that under some circumstances any of the three persons could claim to be beneficiaries. The complaint set forth that decedent had one child born, now 14 years of age, after the execution of the will and that the child had been "born out of wedlock." At the time of the execution of the will decedent had no issue living and, except for the afterborn child, no children were later born to or adopted by him. Plaintiff did not consider the child an heir at law as the birth had been illegitimate. See N.J.S.A. 3A:4-7. Thus, plaintiff believed that N.J.S.A. 3A:3-10, which would have resulted in a total intestacy had the child been legitimate, was inapplicable.
Upon reading the complaint the court suggested the possible unconstitutionality of N.J.S.A. 3A:4-7 in light of Trimble v. Gordon , 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31, decided April 26, 1977 by a 5-4 majority of the Supreme Court of the United States. Consequently, the beneficiaries were ordered to show cause why decedent should not be deemed to have died intestate. A guardian ad litem was appointed for the infant and notice was given the Attorney General. R. 4:28-4(a). Paternity is not disputed.
There is a threshold question of justiciability. At oral argument counsel for plaintiff took no position on the constitutionality of N.J.S.A. 3A:4-7; rather, he submitted the matter on this point without argument but did contend that if N.J.S.A. 3A:4-7 were invalid, the will should nevertheless be probated for reasons discussed later. The Attorney General declined to participate at the trial level and no appearance was entered for the aunt and cousin. Thus, no litigant defends N.J.S.A. 3A:4-7. Nevertheless, the court is obliged to pass on the constitutional question. While litigation ordinarily requires a real adverseness between the litigants, Crescent Park Tenants Ass'n v. Realty Equities Corp. , 58 N.J. 98 (1971), the court could hardly declare a statute unconstitutional by default, particularly when it has been sustained by the Appellate Division within the last year. See Dussell v. Dougherty , 145 N.J. Super. 363 (App. Div. 1976). Further, the will has been offered for probate and appropriate proofs of execution proffered. If the will is valid, it should be admitted to probate notwithstanding plaintiffs constitutional neutrality, since the interested parties have not settled any aspect of the case. See In re Seabrook , 90 N.J. Super. 553 (Ch. Div. 1966). Additionally, while the aunt and first cousin have defaulted, the court in a default case may decline to enter judgment against a defendant if liability is not established. R. 4:43-2(b); Douglas v. Harris , 35 N.J. 270, 276-277 (1961).
This court is of the view that the appropriate test for this case was recently announced in Dome Realty Inc. v. Paterson , 150 N.J. Super. 448 (App. Div. 1977):
Although a court should not engage in rendering advisory opinions on abstract issues, it should not avoid its responsibility to determine the validity of legislation which may significantly affect plaintiffs and others similarly situated.
The Supreme Court invoked a similar rationale in State v. Norflett , 67 N.J. 268 (1975), in entertaining a constitutional
challenge to the abortion laws though expressing serious doubts of the standing of defendant to raise the issue. The court felt that the public interest required that the matters involved be determined. Under all of the circumstances this court concludes that the matter is appropriate for determination.
N.J.S.A. 3A:3-10 provides:
A will, made when a testator had no issue living wherein any issue he might have is not provided for or mentioned, shall be void and the testator be deemed to die intestate if, at his death, he leave a child or issue or ...