Summary
In Dulfon v. Keasbey, 111 N.J. Eq. 223 (Ch. 1932), it was held that a child adopted after the execution of the will of the father of the adoptive parent, was not "lawful issue" of the adoptive parent within the meaning of that particular instrument.
Summary of this case from In re WehrhaneOpinion
Decided August 23d 1932.
1. A testamentary gift by an adopting parent to his lawful issue, i.e., his children, is presumed to include an adopted child.
2. A testamentary gift by a father to his son and in the event of the son's death to the son's lawful issue, i.e., his children, is not presumed to include an adopted child of the son. There is no presumption in favor of an adopted child where the testator is a stranger to the adoption. But an intention to include an adopted child may be established by the surrounding circumstances.
3. A testamentary gift to grandchildren does not per se include a son's adopted child.
Robert A. Keasbey, by the fourth paragraph of his last will and testament, gave the residue of his estate to his executors in trust to pay, out of the income, $10,000 yearly to his widow for life, a percentage of the income to two legatees, and:
"(e) All the balance of my said income remaining in the hands of my trustees after making the payments provided for in items b, c and d of this paragraph, I direct my executors and trustees to divide equally between my sons, Keith W. Keasbey, R. Quinton Keasbey and Aertsen P. Keasbey, until the death of my wife. In case any of my said sons should predecease my wife and leave lawful issue I direct my trustees to pay over to his children, share and share alike, his share of the income, provided they shall or any of them shall have attained the age of twenty-one years. For such grandchildren who have not attained the age of twenty-one years, I direct my said trustees to use, in their discretion, so much of the income that would belong to such deceased son or sons for the support, comfort and education of his or their children. Any unused balance of the income I direct be paid by my said trustees to the legal guardians of such children so that the grandchildren will each enjoy an equal share thereof, per stirpes and not per capita. Should any of my sons predecease his mother leaving no children but leaving a wife, I direct that my said trustees pay over one-third of such deceased son's share of this balance of income to his widow so long as she remains his widow, and add the remaining two-thirds to the shares of my surviving sons.
"(f) On the death of my wife, I direct my executors and trustees to terminate the trust, and at that time, or at my death in case I survive my said wife, I dispose all of my residuary estate not heretofore disposed of, as follows:
" Fifth: Item 1. (Annuity for Louise Pothier.)
"Item 2. (Annuity to two nephews.)
"Item 3. All the balance of my said estate, after paying the legacies and setting out the trust hereinbefore set forth, on the death of my wife, or at my death in case I survive my wife, I direct my executors to divide into four equal shares, and I direct that the amount of any indebtedness of any of my sons to me or my estate be added to the balance of my estate for the purpose of calculating the respective shares, and the amounts of such indebtedness, if any, be charged against the respective shares of my sons.
"One of such shares I direct my executors to divide into parts equal in number to the number of my grandchildren who may be living at the time this division takes place, plus one extra part for each of such grandchildren who may be a granddaughter. I direct my executors hereinafter named to set apart one such part for each grandson and two such parts for each of my granddaughters, and the several funds thus established I give, devise and bequeath to my executors hereinafter named, or their successors, in trust, however, to collect the income from each of the separate funds, and to pay the same, from time to time, after deduction of proper charges and expenses, to the guardians of my several grandchildren, until they reach the age of twenty-one years, and thereafter to the grandchildren themselves until they reach the age of twenty-five years. In case no legal guardian shall have qualified for any given one of my minor grandchildren, I authorize and empower my trustees to pay the income to either of the parents of such grandchild, or directly to such grandchild, and I direct that a receipt or quittance for funds so paid shall be a discharge pro tanto to my trustees. Furthermore, at the written request of the living parents or parent of any of my said grandchildren, endorsed by the grandchild, if he or she be over the age of fourteen years, I authorize my trustees to pay bills out of the principal, where the income prove insufficient, for the support, comfort or education of my several grandchildren.
"As my grandchildren shall severally reach the age of twenty-five years, I direct that the balance of the several funds, principal and income, be paid to them. Should any of my grandchildren die after this clause of my will takes effect, I direct that the balance of the fund belonging to such grandchild be disposed of as he or she may direct by will duly probated, or, failing such direction or appointment, be paid to their next of kin, as determined by the laws of the State of New Jersey at the date of the death of such grandchild.
"I desire to state that in the term `grandchild' or `grandchildren' I do not include any great grandchildren.
"One of the remaining shares I give, devise and bequeath to each of my three sons who may be living at the time of the division. In case any of my sons shall have died, leaving a wife with whom he was living at the time of his death, I direct that she be paid, and I hereby give, devise and bequeath to her, one-third of the amount that her husband would have received, had he survived both his mother and myself, provided she shall not have remarried at the time this provision takes effect. In case any of my sons shall have died when this provision takes effect, leaving issue, I give, devise and bequeath the share that such deceased son would have taken (less the one-third thereof to be paid to his wife if he leave a wife qualified to take under this clause of my will) to his issue, share and share alike, per stirpes and not per capita. In case any of my sons die before this paragraph of my will takes effect, leaving no issue, I direct that the share he would have received (less one-third thereof if he leave a wife qualified to take) be added to the other two shares of my estate set apart for my sons, to be disposed of as such shares are herein disposed of."
On bill for construction of will.
Mr. Edwin B. Goodell, for the complainant Elizabeth Glasby.
Mr. Theodore McCurdy Marsh (guardian ad litem), for the defendant Roy Waldemar Keasbey.
Mr. Philip Goodell, for the defendants Aertsen P. Keasbey, Robert Quinton Keasbey and Pearl H. Keasbey.
Mr. Arthur Harris (guardian ad litem), for the defendants Aertsen P. Keasbey, Jr., Robert A. Keasbey, 2d, Thomas T. Keasbey and Margaret Keasbey.
Robert A. Keasbey, a resident of Essex county, died June 22d 1927. His will bears date October 15th, 1923. His widow and two of his sons, Aertsen and R. Quinton Keasbey, are living. His son, Keith W. Keasbey, resident of California, died June 4th, 1931, leaving a wife, who was living with him at his death, and an adopted child, Roy Waldemar Keasbey, infant, adopted under the laws of California, September 10th, 1924, approximately nine months after the execution of the will. The testator knew of the adoption.
The question is: Does the adopted child take under the will?
The legal status of the adopted child and his adopting parent, according to the California law, is:
"After the adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation." (Civil Code § 228.)
The status is entitled to full recognition in our courts. In re Finkenzeller, 105 N.J. Eq. 44; affirmed, 107 N.J. Eq. 180. The legal incidents of the status, with respect to local property, are determined by the laws of this state. Anderson v. French, 77 N.H. 509; 93 Atl. Rep. 1042. Were this a case of intestacy, and the adopting parent had predeceased his father, there could be no question that, under the established statutory system for the transfer of property upon death, the adopted child would take under our descent and distribution acts. Whart. Confl. L. ( 3d ed.) 568, says:
"There is * * * no doubt as to the general principle that the status acquired by adoption in a state or country having jurisdiction will be recognized both for the purpose of the descent of real, and the distribution of personal, property in other states or countries, at least in those whose laws provide for adoption."
That the property rights accorded the status are those bestowed by the statutory system is reflected in In re Book, 90 N.J. Eq. 549. Chief-Justice Gummere says:
"We are of opinion that the legislative intent to be gathered from a reading of all these statutes was to vest in adopted children all the rights and privileges which, by the act concerning wills, the statute of descents, and the statute of distribution, had been conferred upon children born in wedlock; that is to say, to place them in the same position as if they had been natural born chlidren of the decedent, so far as these statutes are concerned — to substitute the lawful children of the decedent, no matter what the source of their origin, in the place of those born of his body. To give this legislative purpose its full significance, the meaning of the words `child,' `children' and `issue,' wherever appearing in the various statutes comprising the legislative system embodied therein, when used with relation to the testator or intestate, must be considered to have been enlarged so as to include adopted as well as natural born children within their scope."
The medium of the inheritance may be a will. Where the testamentary intention is indefinite or obscure an adopted child may take under it if his status answers the description of the will. The statutory system supplies the intention; he takes by designation of the system. That was the situation in Haver v. Herder, 96 N.J. Eq. 554. There a parent devised a farm to his son for life, over to his "legal heirs." The son was survived by an adopted child, adopted after the testator's death. Vice-Chancellor Buchanan applied the legislative intent in formulating the rule that:
"Where a testator, by a will executed and probated during the existence of our statute as to adoption, devises property to a class designed as `heirs,' `lawful heirs,' or `legal heirs' (in cases where, prior to the statute of adoption, such words would have been held to mean `children' or `children and/or the children of deceased children') he must be deemed, in the absence of evidence to the contrary elsewhere in the will or surrounding circumstances, to have intended to include within such class children adopted pursuant to such statute, as well as natural born children or grandchildren."
The cases cited by the guardian ad litem of the adopted child are based on legislative intendment read into the will. Hartwell v. Tefft, 19 R.I. 644; 35 Atl. Rep. 882; Clark v. Clark, 76 N.H. 551; 85 Atl. Rep. 758; Batchelder v. Walworth, 85 Vt. 322; 82 Atl. Rep. 7; Mooney v. Tolles (Conn.), 149 Atl. Rep. 515. Ansonia National Bank v. Kunkel (Conn.), 136 Atl. Rep. 588, turned up the ascertainment of testamentary intention from the will and the associated circumstances. Here there is no room for the legislative scheme; the testator had his own, and it is unmistakable.
The principal objects of the testator's bounty are his widow, his children and his grandchildren. The income is to be shared by his three sons with his widow during her lifetime and if any of the sons die in her lifetime leaving "lawful issue" the gift is to the sons' "children" whom the testator describes as "grandchildren." The gift of a one-fourth share of the principal is specifically to the testator's grandchildren. The testator's solicitude for his grandchildren, first, in substituting them in their parents' place, and then, by the direct gifts to them of a share of the residue, is the key to his intention that, when he gave the income to the "children" of his sons, dying leaving lawful issue, and willed that his grandchildren should have a share of the principal of his estate, he meant his sons' children begot, as in Genesis; those of his loins, the stock of which he was the ancestor and not children artificially created by law. The gifts were to follow his blood, but not beyond great grandchildren.
Under the statute of California the adopted child bore the relation of child to his adopting parent, but that did not make him a grandchild of the testator — kin to him.
The gifts of one of the shares of the principal of the estate, over to "issue" of a son dying leaving issue, allows of no distinction. By "issue" the testator, of course, meant lawful issue and having once, in the earlier part of the will, denominated lawful issue as the children of his sons and as his grandchildren (the legal definition of "issue" and "lawful issue" in the restricted sense), the same meaning will be given the same words in all parts of the will until a contrary intention appears.
Intrinsically, the will shows the testator's intention to limit his bounty to his kin, and the fact that the child was not adopted until after the execution of the will precludes an intent to include the child. It is suggested that, as the testator permitted his will to stand after hearing of the adoption, an inference arises that he intended that the child should take his adopting parents' place in the event of the latter's death. The inference is not permissible. The will speaks the testamentary intention as of its date; its effect is as of the testator's death. Nor is the advice given to the testator by his attorney, after the will was made, that the adopted child would not take, admissible evidence of his intention. Farnum v. Pennsylvania Company for Insurance, c., 87 N.J. Eq. 108; affirmed, Ibid. 652. It is also a contention that it may be inferred that the testator realized the possibility of an adoption and also the legal consequences, and, hence, contemplated the possible inclusion of an adopted child as his son's substitute. The inferences are inadmissible. Adoption is an artificial method of acquiring an heir; it is the unexpected way. A child is nature's gift from above, normally anticipated. Further, the second inference, if otherwise legally allowable, is unsound; the testator cannot be presumed to have had knowledge of the California statutes and the rights that accrue thereunder to an adopted child. Then there is always a presumption of a testamentary leaning towards kinship. "Where one makes provision for his own `child or children,' by that designation he should be held to have included an adopted child, since he is under obligation in morals, if not in law, to make provision for such child. When, in a will, provision is made for a `child or children' of some other person than the testator, an adopted child is not included, unless other language in the will makes it clear that he was intended to be included. * * * In making a devise over from his own children to their `child or children' there is a presumption that the testator intended `child' or children of his own blood and did not intend his estate to go to a stranger to his blood. Blood relationship has always been recognized by the common law as a potent factor in testacy." Woodcock's Appeal, 103 Me. 214. The doctrine was approved and adopted in Ahlemeyer v. Miller, 102 N.J. Law 54; affirmed, 103 N.J. Law 617. There, parents made a deed for land to their son and his wife, to the survivor for life and then to their children. The grantees later adopted a child. It was held that the adopted child did not take under the deed. Mr. Justice Minturn, after observing that, in the light of the fact that the adoption was after the deed, the limitation over by a third party to the children or heirs-at-law was legally intelligible as not comprehending a stranger to the blood in default of lawful issue; and distinguishing between a court of equity's privilege of ascertaining the testator's intention from the will and the surrounding circumstances and a law court's limitation to an interpretation of the legal significance of a deed, he said, upon the authorities cited:
"The result reached is one of unanimity that a limitation in a deed or will to a child or children is not deemed to include an adopted child, where the grantor or testator is a stranger to the adoption. * * * The right of inheritance by the adopted child is a matter of statutory creation; the taking under a deed or a will depends upon the intention of the grantor, or testator, as revealed by the instrument itself construed in the light of the surrounding facts and conditions. Where the grantor or testator is the adopting parent it is reasonable to presume that the adopted child was within the intended bounty of such grantor or testator. But where he is a stranger to the adoption such presumption does not prevail. * * * The distinction * * * is clear."
See, also, 28 R.C.L. 252 and In re Leask, 197 N.Y. 193; 27 L.R.A. ( N.S.) 1158. The text does not preclude proof of the surrounding circumstances to establish intention to include an adopted child as in Mooney v. Tolles, supra; Ansonia National Bank v. Kunkel, supra.
There is no conflict between Ahlmeyer v. Miller and Haver v. Herder. One treats of presumptions that guide in the search for testamentary intention; the other, of the presumed concurrence by the testator in the legislative intent where he expresses no other.
The adopted child takes nothing under the will and the executor is so advised.