In Re the Accounting of Thompson

Hall, J.

(dissenting). I see no significant difference for present purposes between “children”, “heirs”, “issue”, “descendants” or other such generic terminology, when used in the will of a stranger to the adoption. There being no substantial evidence that the matter of adopted issue was ever considered by the testator or of any contrary probable intent on his part, the primary presumption of exclusion should control. The judgment should therefore be affirmed for the reasons expressed in my dissenting opinion in In re Coe, 42 N. J. 485, 495 (1964). To the authorities there referred *301 to may be added Oler, Construction of Private Instruments Where Adopted Children Are Concerned, II, 43 Mich. L. Rev. 901 , 933 (1945) where, in a comprehensive review of the differing law in all jurisdictions, New Jersey is listed with those states adhering to the stranger-to-the-adoption thesis, citing cases beginning with Ahlemeyer v. Miller, 102 N. J. L. 54 (Sup. Ct. 1925), affirmed 103 N. J. L. 617 (E. & A. 1927). See also a very recent decision of the Supreme Court of Connecticut in Connecticut Bank and Trust Company, Trustee v. Hills, Conn. (January 1969).

Jacobs, J.

My vote is to remand for the taking of testimony as to the testator’s probable intent with respect to the adopted child. A man may, within broad outer limits, dispose of his property in any manner he sees fit. The court’s sole function is to carry out his wishes so far as it can reasonably ascertain them from his will and the surrounding circumstances, without regard to its own private preferences or to the acknowledged preferences of current society. In recent years we have opened the door wide for the introduction of testimony bearing on the testator’s intent. See Fidelity Union Trust Co. v. Robert, 36 N. J. 561 (1962); In re Cook, 44 N. J. 1 (1965). Despite this, the lower court here apparently undertook to construe the will on its face without more; and although the New York law firm which prepared the will has submitted various memoranda to this Court, the avenues of further inquiry which they suggest have not been explored. I would do that now through oral *302 testimony before the trial court; that testimony would include detailed evidence with respect to the law firm’s files and practices during the nineteen thirties when the testator’s will was being drawn and executed; evidence with respect to the participation by the testator’s widow Geraldine L. Thompson in the preparation of the will and her later discussions with her daughter Elisabeth who is still available for the giving of testimony; and such other evidence as might shed any light not only on the question of whether matters of adoption were discussed by the testator and his widow with members of the law firm but also on the broader question of what the testator “would have done had he ‘envisioned the present inquiry.’ ” Fidelity Union Trust Co. v. Robert, supra, 36 N. J., at 566.

As to the judicial presumption in 1935 with respect to the meaning to be given to the word “issue” in the absence of other evidence as to the testator’s intent, I find no reason to depart from the views expressed in my brief concurrence to Wehrhane. 23 N. J., at 211-212. It must be borne in mind that in the thirties the approach to adoptions was not quite what it is today. Wehrhane, 23 N. J., at 210-211. In the memoranda furnished by the Hew York law firm, reference is made to the fact that Bronson Winthrop, the then head of the firm and the member who prepared the will with the assistance of an associate Walter Pfeiffer, both now deceased, had a strong personal feeling that “property should follow the blood line”, and whenever the question arose “he presented that view to his clients”. Vice Chancellor Backes who wrote the 1932 opinion in Dulfon v. Keasbey, 111 N. J. Eq. 223, holding the testator’s will leaving his property to the issue of his son did not include a child later adopted by the son, considered adoption to be exceptional and laid stress on what he referred to as the “presumption of a testamentary leaning towards kinship.” 111 N. J. Eq., at 229. When the Vice Chancellor wrote, he was expressing views which were then widely held not only in Hew Jersey and Hew York but also in most of the other states and in the various treatises *303 which dealt with the subject of wills. See In re Cotheal's Estate, 121 Misc. 665 , 202 N. Y. S. 268, 269 (Sur. Ct. 1923); In re Gurlitz’ Will, 134 Misc. 160 , 235 N. Y. S. 705, 709 (Sur. Ct. 1929); In re Conant’s Estate, 144 Misc. 743 , 259 N. Y. S. 885 (Sur. Ct. 1932); Middletown Trust Co. v. Gaffey, 96 Conn. 61 , 112 A. 689, 691 (1921); Miller v. Wick, 311 Ill. 269 , 142 N. E. 490 (1924); Page, Wills § 903, at 1510 (1926); Rood, Wills § 445, at 391 (1926); Thompson, Construction and Interpretation of Wills § 186, at 321 (1928). The opinion in Ahlemeyer v. Miller, 102 N. J. L. 54 (Sup. Ct. 1925), affirmed by the Court of Errors and Appeals in 1927 (103 N. J. L. 617) and relied upon heavily by the Vice Chancellor in Dulfon, took the view that while it was reasonable to presume that an adopted child was “within the intended bounty” of his adoptive parent, there was no comparable presumption where the testator was someone other than the adoptive parent. 102 N. J. L. at 58-59; see Kocher, Neto Jersey Probate Law 805-806 (1916); see also Clapp, Wills and Administration in New Jersey § 66, at 124 (1937); cf. 3 Powell, Real Property, par. 360, pp. 150—153 (1967). And the opinion of the Surrogate’s Court in Re Gurlitz, supra, written in 1929, noted that “issue” was a legal term which was not common in ordinary conversation and that “its use is persuasive of the thought that the aim of testatrix was to limit her bounty to those in whose veins the same blood as her own coursed.” 235 N. Y. S., at 709.

In Fisler, decided in 1942, the Prerogative Court denied the claim of a later adopted child under the will of a stranger to the adoption; in the course of its opinion it described as “established law in this state”, the judicial presumption that, in the absence of evidence of a contrary purpose, such adopted child would not come within the will’s reference to Tawful issue”. 131 N. J. Eg., at 329. In his affirming opinion for the Court of Errors and Appeals, Justice Heher, after noting that the word “issue” signifies, prima facie, heirs of the body, pointed out that the question was essentially one *304 of intent and that there was nothing to indicate that the testatrix intended to include “those not of the blood among the objects of her bounty”. 133 N. J. Eq., at 423.

In 1953 the New Jersey Legislature directed that in the construction of any testamentary or other document (executed on or after January 1, 1954) “an adopted child shall be deemed lawful issue of the adopting parent unless such document shall otherwise provide.” N. J. S. A. 9:3-30. By its very terms the legislation had no bearing on earlier wills. Wehrhane (23 N. J. 205) held that in the construction of such earlier wills, the judicial presumption, upon which there presumably had been considerable reliance (cf. Fidelity Union Trust Co. v. Potter, 8 N. J. Super. 533, 539 (Ch. Div. 1950)) in the execution of wills and in the administration of estates, would continue. Comparable decisions elsewhere may readily be cited; the most recent is Connecticut Bank and Trust Company, Trustee v. Hills, Conn. (December Term, 1968) where the Connecticut Supreme Court dealt with an instrument executed in 1949 and containing a provision for payment of income to “descendants” of designated cousins. The court held that an adopted child of one of the cousins would not, in the absence of evidence of a contrary purpose, qualify as a descendant within the meaning of the instrument; it noted that the words “descendant” and “issue” in their ordinary and primary meaning “connote lineal relationship by blood” and would be so construed unless it clearly appeared that they were used “in a more extended sense”; in a footnote it pointed out that the Connecticut “General Statutes § 45-6 5a, first enacted in 1959, and applicable to wills and trust instruments executed subsequent to October 1, 1959, reverses this common-law presumption, but of course it is inapplicable to the trust involved in the present appeal.” See In re Estate of Graham, 379 Mich. 224, 150 N. W. 2d 816 (1967); In re Ashhurst’s Estate, 133 Pa. Super. 526 , 3 A. 2d 218 (1938); cf. Rattermann v. Rattermann, 405 S. W. 2d 891 (Mo. 1966); Wilson v. Ingram, 207 Ga. 271 , 61 S. E. 2d 126 (1950); Powell, supra, at 153.

*305 For reversal — Chief Justice Weiktbaub and Justices Eeakcis, Schettiko and Hahemah —■ 4.

For affirmance — Justice Hall — 1.

For remandment — Justice Jacobs — 1.