Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Matter of Estate of Avery

Decided: November 7, 1980.

IN THE MATTER OF THE ESTATE OF HARRY D. AVERY, DECEASED


On appeal from the Superior Court, Law Division, Probate Part, Ocean County.

Michels, Ard and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).

Furman

At issue on this appeal is the right of respondent Julia Ann Avery, natural daughter of Harry D. Avery, to inherit from him. He died intestate a resident of Manchester Township, Ocean County, in this State on July 1, 1979. After the death of his first wife, respondent's mother, respondent was adopted by a maternal aunt in New York in 1932, with decedent's consent.

Appellants, two brothers, two sisters and the son of a deceased sister of decedent, appeal from summary judgment dismissing their complaint for a declaratory judgment that they are decedent's sole heirs. Decedent's estate consists of bank accounts, securities and other personal property.

The right to inherit personal property in an intestacy is determined by the law of the state of decedent's domicile at the time of death. Caruso v. Caruso , 106 N.J. Eq. 130, 142, 146 (E. & A. 1930); Restatement, Conflict of Laws , § 260 (1971).

The right of an adopted child to inherit from a natural parent or relative is governed by the law of the state of decedent's domicile at the time of death, according to general authority. The law of the state of adoption establishes the adoptee's status but not his right of inheritance. The state where the death of the intestate occurred should apply its own law, not the law of the state of adoption, in determining whether the adoptee's right to inherit from his parents and relatives by blood is preserved or terminated. In re Estate of Neuwirth , 155 N.J. Super. 410 (Cty.Ct. 1978); Arciero v. Hager , 397 S.W. 2d 50 (Ky.Ct.App. 1965); Rauhut v. Short , 26 Conn.Super. 55, 212 A.2d 827 (Super.Ct. 1965); In re Zoell's Estate , 345 Pa. 413, 29 A.2d 31 (Sup.Ct. 1942); 2 Beale, Conflict of Laws , § 305.1 (1935); Restatement, Conflict of Laws , § 262(1) (1971); 2 Am.Jur. 2d, Adoptions , §§ 114, 115.

The choice of law rule stated in the Restatement, supra , is as follows:

Whether an adopted child can inherit an interest in movables upon intestacy or receive a forced share therein is determined by the law that would be applied by the courts of the state where the decedent was domiciled at the time of his death. These courts would usually apply their own local law in determining this question.

We do not, accordingly, defer to the adoption law of New York, which preserved an adoptee's right of inheritance from and through his natural parents at the time of respondent's adoption there in 1932 but, by subsequent legislation, has retroactively terminated that right upon the death of a natural parent after March 1, 1964. N.Y.Dom.Rel.Law (McKinney) § 117.

In the absence of legislation an adoption would not terminate the adoptee's common law right of inheritance from and through his natural parents, nor establish a right of inheritance from and through his adopting parents. In re Holibaugh , 18 N.J. 229, 233-34 (1955).

In applying New Jersey statutory law, whether respondent has a right of inheritance from decedent hinges upon which law governs: the present statute effective in 1978, N.J.S.A. 9:3-50(a), L. 1977, c. 367, § 14, or the statute in effect in this state at the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.