Opinion
Argued May 24th, 1939.
Decided September 22d 1939.
The words "surviving lawful heirs," as used by the testator, were equivalent to the expression "those entitled to take by intestate succession under the statute of distribution." On the proposition that the testator could well have anticipated the possibility of an adoption and the legal consequences that would likely follow thereon, probative value will be given to the fact that P.L. 1877. ch. 83 p. 123, directing that adopted children should be invested with every legal right and privilege in the inheritance of real estate and in the distribution of personal property on the death of the adopting parent as if born in lawful wedlock, was enacted more than four years before the making of the codicil in question and twenty-three years before the death of the testator.
On appeal from a decree in the court of chancery advised by Vice-Chancellor Buchanan, whose opinion is reported in 125 N.J. Eq. 389.
Mr. Merritt Lane and Mr. Kenneth J. Dawes, for the defendants-appellants.
Messrs. McCarter English ( Mr. Robert H. McCarter), for the defendant-respondent.
There are only two questions. The first is whether, in ascertaining the testamentary intent, Gertrude Stokes Harloff, the adopted child of John W. Stokes, son of the testator, Edward H. Stokes, should be held within the purview of the term "surviving lawful heirs" as used in the tenth paragraph of the codicil. The second, really an incident to the first, is whether the decree rendered in 1920 in the proceedings for the sale of lands limited over in the fourth paragraph of the codicil is res adjudicata of the present issue. The vice-chancellor answered the first question in the affirmative and the second in the negative. We consider that his conclusion was right in each instance.
On the proposition that the testator could well have anticipated the possibility of an adoption and the legal consequences that would likely follow thereon we give probative value to the fact that chapter 83, page 123, P.L. 1877, providing for the adoption of children and directing that adopted children should be invested with every legal right and privilege in the inheritance of real estate and in the distribution of personal property on the death of the adopting parent as if born in lawful wedlock, was enacted more than four years before the making of the codicil and twenty-three years before the death of the testator. The words "surviving lawful heirs," as used by the testator, were, in our view, and as was held below, equivalent to the expression "those entitled to take by intestate succession under the statute of distribution."
The decree below will be affirmed.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, DONGES, PERSKIE, PORTER, HETFIELD, DEAR, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 11.
For reversal — None.