Lane, A.j.s.c. (temporarily assigned).
This matter is before the court on motion for summary judgment by Janet Neuwirth, administratrix of the estate of Henry M. Neuwirth, to determine whether Sanford O. Kelly has any interest in the estate.
Henry M. Neuwirth married Phyllis Gifford in New Jersey on December 6, 1949. On August 18, 1950 Sanford Owen Neuwirth was born of the marriage in New Jersey. On June 30, 1952 Mrs. Neuwirth obtained a divorce for extreme cruelty in the Superior Court of New Jersey, Chancery Division, Monmouth County. The judgment nisi granted custody of Sanford to the mother. No provision was made for visitation or support. Shortly after the divorce Mrs. Neuwirth and Sanford moved to Florida. In 1954 she married Francis J. Kelly in Florida. By a decree of the Circuit Court for Brevard County, Florida, dated January 25, 1961, Mr. Kelly adopted Sanford. The decree changed Sanford's name to Sanford Owen Kelly. So far as any of the parties before the court know, Sanford had no contacts with his natural father after the divorce.
Henry Neuwirth remarried, had two children and remained in New Jersey where he died intestate on July 28, 1973. In the complaint for administration the widow, plaintiff in this action, named Sanford O. Neuwirth as a possible heir. After almost two years Sanford O. Kelly, formerly Sanford O. Neuwirth, was located in Texas. The widow now moves for summary judgment declaring that Sanford O. Kelly has no right to inherit from his natural father's estate.
Resolution of this motion involves no disputed factual issues. The answer depends on whether the law of New Jersey
or the law of Florida governs Kelly's right to inherit from his natural father, whether the Florida adoption is cognizable in New Jersey and whether the law to be applied is the law at the time of death or the law at the time of adoption.
Adoption was unknown at common law. The legal relationships which result from adoption are purely statutory in origin. Gardner v. Hall , 132 N.J. Eq. 64, 68 (Ch. 1942), aff'd o.b., 133 N.J. Eq. 287 (E. & A. 1943); In re Book's Will , 89 N.J. Eq. 509, 512 (Prerog. 1918), rev'd o.o.g. 90 N.J. Eq. 549 (E. & A. 1919); Silberman, "Adoption in New Jersey -- An Analysis of Its Legal Effects and Consequences," 1 Rutg. L. Rev. 250, 251 (1947) [hereinafter cited as 1 Rutgers ]; Note, "Survey of New Jersey Adoption Law," 16 Rutg. L. Rev. 379 (1962) [hereinafter cited as 16 Rutgers ].
Under the Full Faith and Credit Clause state courts are not required to give effect to adoption decrees of other states where the effect of the decree entitles the adoptee to inherit real estate. Hood v. McGehee , 237 U.S. 611, 615, 35 S. Ct. 718, 59 L. Ed. 1144 (1915). New Jersey originally adopted the minority position that children adopted in a sister state cannot inherit real property located in New Jersey. Frey v. Nielson , 99 N.J. Eq. 135, 137 (Ch. 1926). Such adopted children could, however, inherit personalty from a New Jersey decedent. In re Estate of Finkenzeller , 105 N.J. Eq. 44, 48-49 (Prerog. 1929), aff'd o.b. 107 N.J. Eq. 180 (E. & A. 1930). Frey v. Nielson, supra , was sharply criticized as the climax of incomity. Note, "Adoption -- Conflicts -- Descent and Distribution," 5 Rutg. L. Rev. 423, 425 (1950). The case was specifically overruled in Greaves v. Fogel , 12 N.J. Super. 5, 10 (App. Div. 1951), rev'g 9 N.J. Super. 301, 307 (Ch. Div. 1950). See also, Zanzonico v. Neeld , 17 N.J. 490, 495 (1955) (rejecting the provincial approach of Frey). New Jersey courts now give effect to a foreign adoption decree on the conditions that the foreign court had jurisdiction to fix the status of the child and that
recognition of the adoption does not offend public policy. Zanzonico v. Neeld, supra , 17 N.J. at 495. Procedural and substantive differences in adoption law do not prevent recognition of a foreign adoption decree as long as a genuine familial relationship existed between the adoptee and the adoptive parents. Id. at 497-498.
The majority rule is, and all parties agree, that the law which governs the inheritance rights of an adopted child is the law where the right arises rather than the law of the state of adoption. Page v. Johnson , 45 N.J. Super. 97, 102 (Ch. Div. 1957); Fidelity Union Trust v. Potter , 8 N.J. Super. 533, 538-539 (Ch. Div. 1950); Arciero v. Hager , 397 S.W. 2d 50, 51 (Ky. Ct. App. 1965); Restatement, Conflict of Laws 2d, § 238 at 46 (1971); Comment, "The Inadequacy of Domicile as a Jurisdictional Base in Adoption Proceedings," 17 Rutg. L. Rev. 761, 783 (1963) [hereinafter cited as 17 Rutgers ]. While the courts of the situs of land or decedent's domiciliary state at death look to their own local law to determine whether an adopted child can inherit, Restatement, Conflict of Laws 2d, § 238(1) at 46, Id. , § 262(1) at 119, the validity of the adoption is determined by looking to the law where the adoption was granted if the state of adoption would do the same. Restatement, Conflict of Laws 2d, § 238(2) at 46; Comment (b) at 47; Id , § 289 at 264.
The Restatement, Conflict of Laws 2d, § 290, describes the incidents of a foreign adoption:
An adoption rendered in a state having judicial jurisdiction * * * will usually be given the same effect in another state as is given by the other state to a decree of adoption rendered by its own courts. [at 288]
It is clear that the law of New Jersey governs the right of Sanford Kelly to inherit from his natural father. The central legal issues in dispute are whether the adoption decree should be recognized and whether New Jersey law
which governs Kelly's rights is the law effective at the date of the adoption or the law effective at the time of death.
Kelly collaterally attacks the Florida adoption decree for the limited purpose of restricting the effect of the decree on his right to inherit from his natural father. He argues that recognition of the Florida adoption offends public policy of this State in that the natural father had no notice and did not consent to the adoption.
There is no doubt that due process requires that a natural parent be given notice and opportunity to be heard before being deprived of parental rights through an adoption proceeding. Armstrong v. Manzo , 380 U.S. 545, 549-552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Fielding v. Highsmith , 152 Fla. 837, 839, 13 So. 2d 208, 209 (Sup. Ct. 1943) (en banc). This principle applies whether the natural parent is a resident or a nonresident of the forum state. Olney v. Gordon , 240 Ark. 807, 810, 402 S.W. 2d 651, 653 (Sup. Ct. 1966); Stubbs v. Hammond , 257 Iowa 1071, 1075, 135 N.W. 2d 540, 543 (Sup. Ct. 1965). Cf. Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 319, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (notice to nonresident trust beneficiaries required). It is also fundamental that Fourteenth Amendment rights are personal rights, Shelley v. Kraemer , 334 U.S. 1, 22, 68 S. Ct. 836, 92 L. Ed. 1161 (1948) and that ordinarily a person has no standing to vindicate the rights of a third party, Barrows v. Jackson , 346 U.S. 249, 255, 73 S. Ct. 1031, 97 L. Ed. 1586 (1953), or to seek judicial redress in respect to a matter in which he is without interest, right or duty. Baxter v. Baxter , 43 N.J. Eq. 82, 86 (Ch. 1887), aff'd o.b. 44 N.J. Eq. 298 (E. & A. 1888); Newark Twentieth Century Taxicab Ass'n v. Lerner , 11 N.J. Super. 363, 366 (Ch. Div. 1951). Where the rights of a third party are likely to be diluted or adversely affected unless they are raised in a suit by one standing in a confidential relationship to the third party, there is standing to raise those rights. Griswold v. Connecticut , 381 U.S. 479, 481, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965).
Some courts have held that a child can collaterally attack an adoption decree when the natural parents were not notified of the proceedings. In re Smith's Estate , 86 Cal. App. 2d 456, 467, 195 P. 2d 842, 849 (D. Ct. App. 1948) (dictum); In re Hampton's Estate , 55 Cal. App. 2d 543, 550, 131 P. 2d 565, 570 (D. Ct. App. 1942) (following Smith); St. Louis Union Trust Co. v. Kaltenbach , 353 Mo. 1114, 1122, 186 S.W. 2d 578, 583 (Sup. Ct. 1945). The defect must appear affirmatively on the face of the record, and the burden is on the challenger to show that notice was inadequate in the ...