On appeal from Superior Court, Law Division, Bergen County.
Botter, Antell and Furman.
Presented by this appeal is the question whether an illegitimate child who was adopted by her natural mother's husband is entitled to an intestate share of her natural father's estate. The trial court held that she is so entitled. Her half sister and half brother appeal on the ground that at the time of adoption in 1948 New Jersey law barred an illegitimate child from inheriting from her natural father. We affirm.
The following material facts were stipulated: (1) in 1939 Marian Fishman was born to Alexander Maislin and Florence Wilson in Canada; (2) Alexander Maislin and Florence Wilson were never ceremonially married to each other and Marian Fishman was therefore the illegitimate child of Alexander Maislin; (3) Marian's mother, Florence Wilson, married John Denis Byers in Canada in 1944; (4) in 1948 John Denis Byers adopted Marian in Quebec, Canada, thereby changing her name to Shirley Byers, and (5) Alexander Maislin died intestate in New Jersey on December 25, 1977, at which time he was a resident and domiciliary of New Jersey.
The only testimony taken was that of Marian Fishman who testified that despite living with her mother and John Byers, throughout most of her childhood she continued to see her father and maintained a loving relationship with him. She also averred that her half sister, intervenor-appellant Penelope Maislin, always considered her to be her sister.
The trial judge ruled that Marian Fishman was entitled to a full intestate share of decedent's estate. On appeal appellants contend that the court erred in failing to apply the New Jersey intestacy law as it existed at the time of Marian's adoption in Canada in 1948, rather than the law at the time of decedent's death in 1977.
It is clear that Marian's rights of inheritance must be determined with reference to the adoption law in effect in New Jersey at the time of her adoption. Nickell v. Gall , 49 N.J. 186, 190 (1967); In re Avery , 176 N.J. Super. 469, 473, 476 (App.Div.1980);
In re Wolf , 98 N.J. Super. 89, 93 (App.Div.1967), certif. den. 51 N.J. 273 (1968); In re Neuwirth Estate , 155 N.J. Super. 410, 427, 430 (Cty.Ct.1978). In 1948 the pertinent provision of the Adoption Law read that "from the date of such [adoption] decree, the rights, duties, privileges and relations theretofore existing between the child and his parent or parents shall be in all respects at an end, excepting the right of inheritance " (emphasis added). N.J.S.A. 9:3-7. Therefore, putting aside the effect of Marian's illegitimacy, her status as an adoptee did not disentitle her to share in her natural father's estate.
As appellants correctly observe, the law of intestate distribution in effect in 1948 allowed an illegitimate child to inherit only from her mother, not from her father. It read as follows:
The mother of an illegitimate child, her heirs and next of kin, the maternal grandfather and grandmother of such child, and the illegitimate child, its heirs and next of kin, shall have capacity to take or inherit real estate from each other as heirs under the provisions of this chapter, in the same manner and to the same extent as if such child had been born in lawful wedlock and every illegitimate child shall be considered as a brother or sister of every other child of its mother, legitimate or illegitimate.
Nothing in this section shall be construed to change the existing laws in regard to the father of such child and his heirs ...