*2 GOLDEN, C.J., HILL, Before VOIGT, KITE, JJ. LEHMAN, VOIGT, Justice. court refused district
[T1] The adoption adoption, the doctrines avoid adoption to and virtual by estoppel, dis- statute. the anti-lapse operation the testator's also concluded trict court intention an not evidence did will pass devisee predeceased aof share The devisee's children. devisee's affirm. We appealed.
ISSUES the doctrines 1. Whether and virtual by estoppel, adoption adoption, law Wyoming under are available step- predeceased of a the descendents allow descendents lineal considered to be anti-lapse step-grandfather > statute? erred court district 2. Whether did not testator's concluding that of a share intention evidence devisee's to that pass devisee predeceased children?
FACTS Julie L. Schroeder (Julie) was born Mary Allen Cirksana August When Burke.1 Sylvester Louis (Mary) and Neil old, Mary married years two (Neil). time At Seader Adam Over adopt Julie. agreed marriage, Neil intention voiced Neil years, she were if her as Julie, he treated L. Megan Appellants: Representing time, Mary and one At daughter. natural Dwyer, Jouard Stephen J. Hayes and attorney, but discussed Collins, P.C., Colo- Fort Ray, Huddleson through because to follow decided rado. Nev adopt Julie never did expense. Neil "Seader" surname ertheless, used she T. Har- Lance Appellees: Representing youth.2 P.C., Chey- Harmon, Bailey, & Stock mon any controver- to be appear does cause there spelled "Julia" is sometimes "Julie" herein stated facts facts. sy the basic as to file. set are pleadings and various are taken motions, petitions, appel- relevant favorable light 2. None most forth verified the record legal memoranda lants. affidavits, be- perhaps by sworn accompanied Mary [18] Neil and sons, had two Neil J. tion that it was Neil's intention to have Kim (Neil J.) Seader and Charles Lee Seader and Kirk inherit their mother's share of the (Charles). Mary died in leaving her estate. Several later, months the Order Ap entire estate to Neil. Julie children, had two proving Accounting, and Decree of Distribu (Kim) Kim Sanderson (Kirk). and Kirk Olive tion incorporated provisions of the sum In his Last Testament, Will and dated Au- mary judgment order. *3 appeal This followed. gust 30, 1996, after a few bequests, Neil left the residue of his J., estate to Neil STANDARDOF REVIEW Charles, and Julie. Julie died May 7, [T6] We recently reiterated our 2000. Neil July 10, died on standard 2000. for review of summary judgments granted [T4] Neils will was admitted to 56; under W.R.C.P. 21, on July 2000. May 2, On 2001, the When a motion for summary personal judgment representative of the estate filed a court, before this assuming there Preliminary is a Report, Accounting and Petition complete record, we have exactly for Distribution, same which he noted that Julie duty and predeceased materials as did the Neil district court and he proposed dis and must tributing follow the same one-third standards. residuary Hob interest Kim and lyn Johnson, Kirk. ¶ Subsequently, Neil 2002 152, 11, J. WY filed an 55 P.3d ¶ 11 1219, Objection (Wyo.2002). to Preliminary Report, The propriety Accounting granting Petition for Distribution, summary judgment depends which upon he contended that testamentary correctness of a devise to court's dual findings Julie had pursuant failed Wyo. Stat. Ann. there genuine is no issue as any §§ (LexisNexis 2-6-106 and 2-6-107 2003)3 material fact and the prevailing party is Charles soon thereafter filed a objec similar entitled to judgment as a matter of law. tion. That was by followed a Petition for Id. This court looks at the record from the Declaration of Status as Beneficiaries of Es viewpoint most favorable to party op Kirk,. tate filed Kim and Finally, Neil J. posing motion, giving to him all the and Charles filed a Motion for Summary favorable inferences which be drawn Judgment. from the facts contained in affidavits, depo sitions, and other materials appearing in [15] On February 22, 2002, the dis the record. Id. trict court issued its Order Granting Sum mary Judgment. party district moving court conclud summary judg- ed that ment residuary bears the initial devise to Julie burden of establish- failed because predeceased she ing prima a she facie case for a summary not Neil's "grandparent" or a judgment. "lineal descen If the movant carries this bur- dent" of Neil's grandparent, required den, the party opposing the summary the anti-lapse statute.4 The district Judgment must come forward with specific also held that Neil's will was clear and un facts to demonstrate that genuine a issue ambiguous and that it contained no indica of material fact does exist. Eklund v. PRI 3. Stat. Aun. 2-6-106 states: Except provided 2-6-106, in W.S. if the residue (2) is devised to two persons or more If a devisee who is grandparent a or a lineal and the share of one devi- residuary descendent grandparent of a of the testator is any reason, sees fails for passes his share dead at the will, time of execution of the fails devisee, residuary or to other residuary testator, survive the or is treated as if he proportion devisees in to their interests in the predeceased testator, the issue of the de- residue. ceased devisee place take in of the deceased devisee they and if are all of the degree same general, 'In a devise legacy left to a benefi kinship to devisee equally, take ciary in his capacity, individual jointly unequal if of degree then those of more remote others, with lapse upon prior his death degree per take stirpes. One who would have testator, that of the unless the testator has ex been a devisee under gift a class if he had pressed contrary intention, or unless a control survived the testator is treated as a devisee for ling statute otherwise dictates." Matter Stro purposes of this section whether his death oc- ble's Kan.App.2d 6 636 P.2d curred before or after the execution of the (1981). will. 239 AmJur.2d, See Wills, also 2-6-107(b) states: §§ 1423-1430 previously also (Wyo.1973)7 We 55, ¶ Inc., Environmental, 2001 WY conformity all with that substantial fact held ¶ material A (Wyo.2001). P.3d necessary to effec requirements fact as a defined been has Matter legal in whole depends litigation tuate outcome ¶ 11, (Wyo.1988). AMD, 766 P.2d 2002 WY Hoblyn, part. inor ¶ cir whether, P.3d present inter case, equity should Bertagnolli v. of this Louderback, cumstances WY (Wyo.2003). 627, 630-31 adoption took
¶¶ 10-11, no where itself pose place. DISCUSSION
have
Neil died.
under
daughter or
share
and
106.
result, in an effort
and
daughter or
estate
She
recognition
r.6
fore,
tion
as
tion." -
concerning
Tag
[T8]
Kirk
bad he
at common
taken
the
Likewise, had she
of
are
will,
his
Aporrmion
would
rights and
In
We
not,
his estate
pursuant
adoption
will.
governed
re Randall's
Kim
Had
one-third
of
his
descent,
died
previously
however,
his
have
adoptive status
legally
law was
and
she
Had
intestate,
legally
liabilities
to take
of
would
gone
survived
Kirk
died
Wyo.
she
distribution,
of
minor
adopted
legally
have
Estate,
his
unknown
been
been
now seek
two months
adopted
have
in her stead
Stat,
emanating there
her share
residuary estate
Kim and
held
children
she would
*4
him, adopted.
for their
daughter,
his
his
gone
Ann.
and, there
and
provisions
biological
daughter,
biological
equitable
Kimto
as
§ 2-6-
before
"adop
of
Kirk.5
mothe
adop
aAs
well
her
his
the basic
Where,
cussion
with
ning statutorily
a definition:
(footnotes
[19]
In this
related
and
person
creation
tee's
duties
has been
for all
a decree
equivalent
Am.Jur.2d, Adoption
some
adoptive
child
or
of this
natural
It will
as
regard,
of domestic
concepts that
intents
adopted becomes
by nature
omitted).8
defined,
aof
between
in
of
courts
said
the
of
adoption
adopter, and
Wyoming,
issue
parent.
biological
parents
legal
"adoption"
and
helpful to
meaning of
the
as
persons
or
relation
relationship
purposes,
the establishment
adoption is
courts
renders
law, whereupon
are
parenthood,
§
a consideration
that
the
has
1 at
preface
involved, begin-
who were
the
terminated.
have
term
been
legal heir of
the
"adoption."
rights and
of
the
the
supplied
our
adoptees,
child
defined
parent
is not
so
adop-
legal
dis-
the
or
so
of
It
Wyo. Stat.
defined
adoption is not
(LexisNexis
1-22-114(b)
8. While
§
Ann.
Stat.
5.
1-22-101,
section
definitions
is the
which
§
may assume
Ann.
"Adopted persons
2003) states:
statutes, Wyo. Stat. Ann.
adoption
They
Wyoming's
enti-
are
adoptive parent.
of
of
surname
adop-
1-22-114,
effects
property as
forth the
sets
person and
which
rights
the same
tled
cited
who
persons
language
similar
tion,
at law
heirs
and
contains
children
2-4-101(c)
Ann.
Wyo. Stat.
adopted them."
above:
2003)
(LexisNexis
states,
part:
pertinent
adop-
decree
entry
a final
(a)
Upon the
enumerated,
estate
above
Except
cases
putative
or
guardian
parent,
former
tion
distribut-
and
descend
shall
any intestate
right
have no
child shall
father
follows:
ed as
adopting
custody
the child.
control
surviving,
the descen-
and
(G)
children
To his
rights
obli-
all
have
dead,
persons shall
descen-
who
children
of his
dents
they were
as if
child
respecting the
gations
taking
collectively
the share
dents
parents.
living{.]
if
natural
have taken
would
the sur-
may assume
persons
(b) Adopted
adop-
create
adoption does
Equitable
They are entitled
parent.
adoptive
name
rather,
recognizes its existence
merely
tion;
it
as
property
person
rights of
the same
R.
Burlington Northern
Holt
purposes.
limited
persons who
law of
at
heirs
(Mo.App.1984).
Co.,
S.W.2d
adopted them.
are found
adoption statutes
Wyoming's
(Lexis-
through 1-22-203
§§ 1-22-101
2003).
Nexis
their Petition for Declaration of
to undertake
legal
steps necessary to
Status as
Beneficiaries of
Kim and
formally accomplish the adoption;
the doe-
Kirk
equitable
set forth
adoption, adoption
trine
applied
in an intestate estate to
by estoppel,
and virtual
separate
give effect to the intent of the decedent to
causes of action. Where these doctrines
adopt
provide
for the child.
have been recognized, however,
they have
The doctrine
predicated
on principles
largely been treated as interchangeable, and
of contract
law
enforcement
all are based on the
theory:
same
"[Olne
agreement
to adopt for
purpose
agreed
who had
to adopt a
during
of securing the benefits of adoption that
life, but for some
not,
reason did
for inheri
would otherwise flow from
adoptive
purposes alone,
tance
will be considered to
parent under the laws of intestacy had the
...
adopted
[
]
[the child]"
2 Am.
agreement
out;
been carried
Jur.2d, Adoption,
supra, § 43 at 918-19.
such it is essentially a
matter of
Equitable adoption has been described as
Being
relief.
only an equitable remedy to
follows:
enforce a
right,
contract
it is not intended
While a child to
pursuant
applied
or.
to create
legal
relationship
agreement
between his
parent
natural
parent
child,
with all
legal
con-
and the
parent cannot specifically
sequences of such relationship, nor is it
enforce
its
by the
adop-
deceased
meant
to create
adoption. The
parent,
tive
nevertheless, because of the
need for the doctrine arises when the
*5
agreement, he can
specific
obtain
enforce-
adoptive parents
intestate;
die
the doc-
ment of the benefits that would acerue
trine is invoked in order to allow
sup-
the
from such adoption-this
posed-to-have-been
remedy is
some-
adopted child to take
times referred to
equitable
as an
adoption.
an intestate
share.
It
applicable
"equitable
terms
adoption,"
"virtual
where
the
decedent dies testate.
adoption," and "adoption by estoppel,"
Am.Jur.2d,
Adoption, supra, § 53 at 929-
have been used interchangeably
by the
(footnotes
omitted). See also Rebecca C.
courts. Generally speaking,
theory
of Bell, Comment,
Adoption:
Virtual
The Diffi
recovery in
equitable
an
adoption case is
culty
Creating
Exception
an
to the
of
Statu
upon
founded
equitable
either
principles or
Scheme,
tory
XXIX Stetson
L.Rev.
419
theory
of estoppel.
In the
(1999)
for-
-30
(comparing estoppel and contract
mer it
judicial
is a
remedy for
unper-
as bases for
the theory) and Harvey A.
formed
contract of
Schneider,
adoption or, in
Comment, Equitable Adoption: A
alternative,
the ordering
of
per- Necessary Doctrine?, 35 S.
Cal. L. Rev
formance of an implied contract
(1962)
to adopt.
492-96
(problems with contract
theo
ry).
The estoppel theory operates
preclude
a
party from asserting the invalidity of a
Equitable
[T11]
adoption must be distin-
status of an "adopted" child for inheritance
guished
adoption
from
by contract, deed, or
purposes.
It has been said that a so-called
act,
notarial
process
a
recognized by statute
"equitable adoption" is no more than a
in
jurisdictions.
some
Where such methods
legal fiction permitting specific perform-
adoption
are legislatively sanctioned,
ance of a contract
adopt.
Furthermore,
result
in a legal adoption status that
is no
the descriptive phrase "adoption by estop-
different from the status that arises from a
pel" has been described as a shorthand
decree of adoption in
judicial
a
proceeding.
method of saying that because of the
2 Am.Jur.2d, Adoption, supra, § 48 at 918.
promises, acts and conduct of an intestate
Equitable adoption, on the
hand,
other
"is
deceased,
those
claiming
and
never viewed
equivalent
as the
of a formal
through him are estopped to assert
that a
adoption, in terms of establishing
parent-
child was not legally adopted or did not
child relationship,
and
merely
a status
occupy the status of an adopted child.
invented
courts of equity as a means of
An adoption by estoppel is an equitable
allowing a child in an appropriate
case to
remedy
protect
the interests of person
enjoy part of the advantage
adoptive
sta-
who was supposed to have been adopted as
tus." 18
2d,
Proof of Facts
Equitable Adop-
a child adoptive
whose
parents failed
(1979).
tion
1 at 548
is unk
intent
the decedent's
where
estates
equitable
elements
[T12]
gener
addition,
nown).10
the doctrine
In
agree
express
(1)
or
implied
adoption are
adopted person's
equitably
to the
ally limited
(2)
on
child;
reliance
adopt the
ment
adoptive
an intestate
from
attempt to inherit
natural
by the
(8) performance
agreement;
right of
enforce
used to
(4)
is not
and
perform parent,
custody;
up
giving
in
parents
kindred
collateral
from
inherit
adoptee to
of,
home
living in the
in
child
by the
ance
kindred
right
collateral
parents;
of,
adoptive
to enforce
nor
the child
acting as
v.
Helen Crab
adoptee.
to inherit
by the foster
(5)
performance
partial
Stanley
(Tex.1963);
tree,
treat
home
369 SW.2d
into their
taking the child
Comment,
child;
Atwood,
Virtual
as their
P.
ing the
parents.
Inheritance,
& Lee
XXI Wash.
the foster
intestacy of
Rights
Lankford
489 S.E.2d
N.C.
Wright, 347
L.Rev.
was
these elements.
(1997); 2
at 932-33.
made
has
favor
record.
jected
bled
summary
to
although the doctrine
application
ta
Barlow,
1977); Estate of
(Fla.
(1969);
Lankford,
168
547, 547
Estate of
Ill.
has not
XXIX Stetson
1987).
apply
intestate
Neil J.
Corp. v.
situation,
596,
granted
App.1991);
Cal.Rptr.
by the
no
Kirk
to testate
in others.9
Miller
been
See
recognized
(Fla.1953); Franzen
findings of
170
Am.Jur.2d, Adoption,
89
judgment,
Wall,
489
In
estates.
Mann,
also
applied to
N.E.2d
lack of
Colo.
we
the doctrine
majority
v.
granting
533, 534
S.E.2d
Roberts
L.Rev. at
502
Instead, summary judgment
estates,
Charles,
Wilson,
Kim, as the
Paczier,
will assume
Rebecca
in one form
564
465,
fact
Almost
So.2d
See,
although we
ground
has been
818,
verified
testate
v.
P.2d
summary
of states
but
111 Cal.
463
(1980);
the district
591
531,
Caughell,
485-89
regard to
has been
821
C.
only to intestate
exclusively,
example, Calis
v.
53,
So.2d
opponents
532
estates.
404
Hallmer, facts
*6
explicitly
supra,
Bell, supra,
(1950);
It
App.3d
61
Barlow
judgment
Wyoming
are trou
recognize
(does
the facts
generally
(Fla.
305, 306
another,
65 So.2d
321,
(Alaska
limited
any of
§ 54
App.
242,
822
re
not
re
v.
tate
recognized
who
mention because
related
sented
completion, with
record.
couple.
court's
tion
the deceased
death
favoring the deceased's
Court
lowing
pliance
ground
peared
twentieth
ming when
fulfill
could
equity.
estates.
of his
had been
child's
reversed
P.
failure
proposition:
issues.
with
adoptive
Id. at
Statutory adoption
Wyoming
Nugent
estate
equitable
agreement
adoption
enforced
there
centuries
statutory provision
adoptive father
Three
child's
to enter
abandoned
these
In
(1893),
adoption statutes.
to
adoption
father
they touch
has
late
Nugent v.
had been
Upon the
themselves, claiming that
has not
cases,
exception of
adoption, even
two
district
mother,
been
in Missouri
to
nineteenth
subsequent
pioneer
by the father
adopt
however,
adoption order
ineffective.
doctrine
mother of
siblings on
cited
incontrovertibly
substantial
sought distribu
Powell, Wyo.
intestate
court's
on similar
by a childless
principles
pursued
for the
states
siblings
Id. at
in intes
first
deserve
adoption
did
a child
decree
death
Wyo-
early
com
con
This
held
fol-
not
ap-
25.
or
193,
Malone,
Mo.App.
142
v.
Thomas
But see
Am.Jur.2d,
931-
supra,
53 at
Adoption,
2
9. See
equitably
(1910),
where
523-24
S.W.
126
Annotation,
George
Locke,
A.
n.13;
n. 10
32
claim
pursue a
to
Adoption or
was allowed
Equitable
adopted child
to
Law as
Status
Modern
Further,
pretermitted
359-
heir.
as a
Estoppel,
against
A.L.R.3d
a will
97
Bell,
to
Stetson
supra,
XXIX
the doctrine
(1980);
begun
C.
Rebecca
66
courts
some
Note,
Yount,
in
benefits,
Ann
Beth
12;
n.
at 417
life insurance
such as
claims,
L.Rev.
other
Adop-
Equitable
Recognizing
considerations,
Wright:
ac
wrongful death
tax
heritance
Lankford
Carolina,
L.Rev.
76 N.C.
North
tion
benefits,
child sup
tions, worker's
compensation
Note,
Jr.,
J.C.J.,
Equitable
(1998);
Locke,
supra,
n. 5
George
2446
A.
contests.
port, and
Home
Their
They
Into
Took Him
Adoption:
at 353.
A.L.R.3d
n. 7
Fred,
727-28
Va. L.Rev.
Him
Called
and n.
Yount, Note,
Ann
Beth
v. Wright:
their adult niece in Bulgaria,
Lankford
offering to
Recognizing Equitable Adoption
adopt
in North
her and to make her their heir if she
Carolina,
76 N.C. L.Rev.
would come Casper,
Wyoming, to live with
(footnotes omitted). Our
reading of
Nugent
them.
Id. at
690. The niece eventually did
leads us to the
come to
considerably
Casper and
more limited
moved into the home of
conclusion that
uncle and
merely
wife,
case
his new
stands for
first wife
the proposition that
substantial,
having
rather
died.
than
Id. And
did,
indeed,
uncle
absolute,
make a will
compliance
naming
with
niece as the
stat-
sole
beneficiary
utes is
of his
sufficient to
estate.
create
Id. at
690-93. Un
fortunately,
emphasis
niece
Nugent
the new
upon legal
wife did
adop-
get
along,
tion
statutory
out,
nieee
scheme,
under a
moved
and the
uncle drafted a
new will leaving
everything
based
an agreement.
to his new
Upon
wife.
death,
the uncle's
[116] Commentators
have noted that
niece filed an action seeking damages for
courts
always
have not
done well at distin-
breach of the contract
adopt
her and to
guishing between
contracts to
and con-
make her an heir.
Id. at 693-94.
tracts to make a will or leave an inheritance:
[118] The district court directed a ver
speak
courts often
spe-
terms of
against
dict
the niece.
In reversing and
performance
cific
adopt.
contract
remanding
trial,
for a new
this
empha
Court
In according
remedy
courts have
sized that
alleged
contract did not deal
sometimes failed
distinguish
between a
solely
adoption,
promised
contract
to leave a child's share of the
uncle would make the niece his heir. We
adopting parent's
estate to
adopted
concluded that "[sluch contracts are not un
child-which of course
right
limits the
common in the case of minor children and
the adopting parent
dispose
of his estate
are 'generally
impose
construed to
upon the
by will-and
a contract
adopt,
ie.,
adoptive parent an obligation to make the
comply with
adoption proce-
heir,
child an
which equity will specifically
dure. The latter
type of contract
leaves
"
enforee.'
Id. at 695 (quoting
Davis,
R.P.
the adopting parent
free to disinherit
Annotation, Specific
of, or Sta
Performance
just
as he could disinherit a
Under,
tus Child
Contract to Adopt Not
natural child.
Fully Performed,
A.L.R.
Bailey,
Edward D.
Adoption "By Estoppel,"
(1947)).
quoted
This
language,
taken from
Tex.
(1957);
L.Rev.
see also
an annotation concerning enforeement of a
J.C.J., Jr., Note, Equitable Adoption: They contract
adopt,
*7
appears to be at least an
Took Him Into Their Home and Called Him indirect acceptance of the concept
equita
of
Fred,
727,
58
(1972) ("Of
Va. L.Rev.
729-30
adoption.
ble
However,
quoted
the
language
course,
single
a
case
involve both a
is followed immediately in
opinion by
the
this
contract
to make a will and a contract
to
sentence:
"Our difficulty here is that an
adopt, and courts sometimes fail to distin
adult is involved." Pangarova, 419 P.2d at
guish
them;
between
but the essence
equi
of
695. Thereafter,
pursued
we
neither
that
table adoption
provision
is the
judicial
of a
general issue-adoption
of an adult-nor
the
remedy for
unperformed
adoption agree
specific issue
equitable
of
adoption of an
ment.") (footnoteomitted).
Instead,
adult.
we cited several cases where
Pangarova
[T17]
the
Nichols,
contract being
v.
419
enforced in equity
P.2d 688
was not
(Wyo.1966),
simply
just
a
is
contract
case,
adopt,
such a
to
largely
but also
be
contained
parties,
cause the
heir,.
promise
a
long
before the
to make
got
adoptee
matter
the
Id.
at
695-96.11
court,
to
blurred the distinctions between
adoption and inheritance.
In Pangarova,
a
[119] On appeal
retrial,
after
jury
a
ver-
man and his wife wrote numerous letters to
dict
in favor of the niece was affirmed.
11.
Simmons,
Hicks
v.
(10th
271 F.2d
heir);
make
Foster v. Cheek,
pose....
restrictive and inflexible rules of the common
Statutes must be construed so that no
law, and not as a means of avoiding legisla
portion is
meaningless....
rendered
Inter-
tion. that courts deemed unwise
pretation
or inade
should
produce
an absurd
quate." Lankford,
(Mitch
and or cous- line, brother brother to from oblique princi- existing by established and collateral 456. "With at Id. cousin." in to or unsettled changed may not be they ples, are related descent, and donee the donor thus bound equity is A court of equity. in Id. ancestor." common through a directly applica- or statute any explicit by case, of views of law, of its instant regardless in the problem of The rule [T27] ble collateral was Neil's course, not that Julie is equities. was not Julie problem is that The relative. § Am.Jur2d, Equity 27A (quoting Id. grandparent of Neil's descendent the lineal (1994)). Leg by legal biologically or either task oversimplify the and Kirk Kim [T24] that, had certainly clear intent is islative cor- They argue, Court. to this presented considered would be adopted, she been Julie is whether question rectly, that a lineal des child, then be would Neil's Neil's considered should mother Ann. the statutes. under cendent anti-lapse stat- purposes for daughter 2008). But, its 1-22-114(b) (LexisNexis on that incorrectly characterize But ute. clearly just as anti-lapse statute face, prede- of a "children" allowing the statute or other step-children provision makes no the share to take "family member" ceased adopted. legally been have not who persons de- bequeathed was that estate an statute the words regard, in that And will, de- a family member ceased is a A lineal descendent ambiguous. are not "non-family mem- treatment such nying an am create cannot We descendent. lineal would we question, were If that bers." asking whether the statute within biguity a Julie whether to determine only have equitable doctrine was an we should statutory con- But "family member." by the persons identified the class broaden that. complex than more is much struct statute.14 his vise facts Whether divided depends lineal descendent 107(b) residuary is whether share not defined sult. to son straight connotes nary descent" scent" [T25] estate lapsed, died of this 456, 941 provides, provides equally between line, "a contrasted Neil left indicates or not devise before go to grandson." then direct case, Wyo. Stat. Wyo. Stat. as from phrase Julie, legislature that, Kim and (7th the entire statute. blood her did "[dlescent effect, Neil's if Julie's Neil devise did. As ed.1999). "lineal descendent" father or residuary portion Black's Neil J. relative," "collateral Kirk. intended J., grandparent, residue to Julie in a direct applied to lapse, residuary de- and Charles. Ann. word and Charles. if Julie Law "Lineal grandfather descent," 2-6-106, is to be that re- "lineal" § 2-6- Dictio lapsed "lineal is a de or uitable to inherit intestate. failed, parent died will or ry a there been available adoption is however, allowing the know leave did should testamentary inheritance why disinheritance, will. adopted. Where the decedent's was also adoption is not be himself portion leave [128] - In the there adoption to This case serves option for from Because used without doctrine child to applied to someone is no in his instant The either inheritance). a fill that intent primary enforce will, will.15 enforce gap to inherit as child, a will estate case, testate who promise to putative aas there nor a from decedent intent has been we do which function a child's promised, but to Julie-Neil good estates-the was testamenta - filled,. We if she then died Equitable "gap" intent terms example was amake neither (unless made, right need eq adoption statute ignorance of will in Mitchell's Chief Justice point of 14. That he and that statute, ignorance of the anti-lapse Lankford, 489 S.E.2d dissent the stat- opposite actually a result intended support no evidence utory There asking results. Kirk Alternatively, what Kim theory. Neil made presume that do is to Court to *10 1246 testamentary may negate result both legislative and they inherit if were of the blood, whole t.16 facts of this stepchildren
inten
and foster children and their
case also raise another consideration: when descendents do not inherit."
seeking recognition
child
adoptive
sta
step-child brought
tus is a
into the
by
home
Testamentary
INTENT
marriage
of her mother
putative
In
their
issue,
second
Kim
adoptive father, the inference does not neces
and Kirk contend that
the district court
sarily follow that
there
promise
was a
erred in concluding that Neil's will did not
adopt.
may
A court
infer
promise
such a
evidence an intention that
their mother's
biological
cases where
relinquish
share of his estate
go
should
They
them.
their child to others. The same inference
argue that, even if
anti-lapse
statute does
may
appropriate,
not
however,
be
when a
preserve
not
her,
the devise to
this Court
brings
mother
her child into the home of her
give
should
effect to
intention,
pro
new
situation,
husband.
In
may
there
by Wyo.
vided
equal
be an
(Lexis-
§
Stat.
inference
Ann.
that the
2-6-105
father-child or
stepfather-stepchild
2003):
relationship merely
Nexis
-
-
arose out of the domestic status
par
of the
The intention of a testator
expressed
J.C.J., Jr., Note,
ties.
supra, 58 Va. L.Rev.
in his will
legal
controls the
effect of his
737-38;
George
Locke,
A.
Annotation,
dispositions. The rules of construction ex
Modern Status Law
Equitable
as to
Adop
pressed in the succeeding sections of this
tion or Adoption by Estoppel, 97 A.L.R.3d
article
unless
contrary
intention is
347,
(June
§ 26 at 65-67
Supp.).
2003
See
indicated
the will.
also,
Bell,
Rebecca C.
supra, XXIX Stetson
We note
Wyo.
§
Ann.
2-1-
L.Rev.
George
Sims,
at 430 and
Comment,
C.
102(a)@ii)(LexisNexis 2008)
emphasizes
also
Adoption by Estoppel: History
Effect,
importance
of testamentary intent:
Baylor
XV
L.Rev.
168-69
(a) This code shall be liberally construed
As for the stepparent-stepchild
relation-
applied,
promote
ship
following pur
case,
in this
that relationship calls for
poses
policies
particular
to:
cireumspection before recogniz-
half-blood inherit the
probate
determining
succession,
Otero
Nexis
port
stepparent's
hood,
stepparent
stepchild would
consequence of such kindness
public
Such conduct could
ous
parent
son is the appreciation that
ing
seldom
inheritance
been
v.
after
2003)
such as a
code
City
interest for
Finally,
as an
legally
applied
or its
the intent
loving
divorcee or a
of the
should also
chapter
estate
rights
Albuquerque,
Stat. Ann.
(App.1998).
adopted:
equivalents
although it
duty
be the
stepparents
adoption. Courts have
after
same share
dealing with intestate
doctrine of
be
parent....
be considered when
incidents of
reallocation of the
death.
provide
imposition
discouraged
"Persons of
legislature
to treat a step-
stepchildren.
to be
it is in the
part
who have
N.M.
toward One rea-
parent-
on the
gener-
would The courts will
(Lex-
as to
sup-
if a
Dainton v.
Cheyenne,
uous,
Sheridan,
something
Ko
the will.
1961). Where the will is clear and
intent of the
must
solely
P.2d
utory directives, "the intention of the testator
tion of wills. Consistent with the above stat
ments as to testamentary
briefly review our standards for the construc
[4 32] Before we
re
property[.]
intent of a decedent in distribution of his
Boyd's Estate,
govern."
(ii) Discover and make effective the
rtz
Churchfield
418 P.2d
the testator
571 P.2d
Watson,
(Wyo.1975).
testator must
meaning
Hammer v.
may
American Nat. Bank
address the
366 P.2d
658 P.2d
supply
v. First Nat.
not read into
did not
Furthermore,
intent, we will
words for the
Atchison,
words used in
parties'
place
(Wyo.1977).
(Wyo.1966);
ascertained
unambig
Bank
a will
there.
(Wyo.1983);
(Wyo.
argu
536
16. We are not
determining
herein
equi-
whether
equity
in a
displaced
case:
"Unless
table
applied
in an intestate
particular
provisions
code,
princi-
of this
setting. 2-1-102(b)
(Lexis-
Stat. ples
law
equity
supplement
pro-
the code
2003)
Nexis
allows for
appropriate
exercise
visions."
Corp.,
See Calista
testator. three individu- Wyo. Stat. to 819,822 of his estate residue 2008), requires (LexisNexis which identify the rela- does not will § 2-6-112 als. The ascribing to a precludes individuals writing, any of these tionship to be wills in the expressed intention any testator no distinc- made testator and the testator P.2d at Churchfield, itself. instrument residuary clause. in the them between tion P.2d at 1003; Boyd's In re that these intention an evidences This court Neil [133] J. made the and Charles granting following on summary this findings: issue, judgment district to three bequest der individuals clause, residuary the testator be treated clause. left In the identically un- his coins to specific Neil share graph of Adam Seader there would Based guage dent's andWill sion decedent. [T 34] intended Bathrick. (1) Charles of his estate SECOND: Last Will is no indication my Thomas have on the nowhere intention Testament. inherit argument of Lee To the for them inherited appellate Also, my clear is clear Last to be found Seader, Neil J. Seader the share to have and (SPECIFIC is contained Organ to Julie contrary, such and to andWill had that brief: Testament take their Kim and and lan- unambiguous she survived Ms. Schroeder's it was coins within Ms. unambiguous. BEQUESTS) in one Testament Schroeder Schroeder; Kirk the dece- mother's the Last of Neil provi- para- and Julie safe deposit I make the (2) upon which follows: the same intention ly. and share Julie thing ie given tainly not treated preference [135] the sum L. Schroeder, Schroeder, the decedent's Finally, in the box to be Schroeder to nothing additional. the testator's of $500.00 that following specific three alike." over it is that she these three divided share argument individuals is worse. given to Ronald specific two Again, provisions and biological sons-cer- intentions equally biological sons share alike. a Thomas be is based If this adds should evidence bequest bequests: equally, treated among about Jul- the will read as clause, "share Organ equal- given any- every nature my property, rest, and remainder residue All the THIRD: situate, may be mixed, the same wheresoever real, personal or description, Last Will of this the execution after acquired before or and whether remainder, property any rest, residue including such Testament, [sic] testamentary power of have the my I shall death the time at which over proceeds devise bequeath and give, I sold and to be disposition, is directed to: divided [be] L. Schroeder Julie Lee Seader Neil J. Seader Charles [Address] [Address] [Address] others by the assertions or adopt Julie district with the agree 36] We [1 intended previously allegedly that he unambiguous are clear provisions these adopt her. any hint do not contain they simply and that bequest of an intention and devise anti-lapse statute. to Julie should behalf The will exempt does tention Julie's mother, that, Even if we were Neil time of agreed accept marriage to the con- Julie, of Neil's "my assessment nothing child" to our to Julie adds refer not even child, like An testamentary intent. "my children." J., Charles Julie, Neil left out child, have been could language a natural nothing within There specu- would We altogether. infer that Julie the will can we will from that, included Neil because conclude descen- a "lineal late considered to be intended gifts to will, he meant in his can- that we remembered It must be dent." predeceased if she her children pass within ambiguity not create justified; simply not speculation is Such him. did knowledge that application *12 the terms of the will statutory and the provi- ultimately allowing a woman to inherit from equally unambiguous. sions are the intestate estate of a woman who had held her out as her child. Id. at 606-07.
CONCLUSION [141] The dissent in the North Carolina apply [138] We decline to the doctrine of case upon was based a statute that is sub equitable adoption to affect the distribution stantially different from Wyoming's statutes. of a Equity testate estate. should not be The North statute, Carolina included in the available to countermand clear legislative provisions governing succession, intestate mandates. are both provided person that a adopted in accor statutory procedures, with formalities de- dance with the signed statutes certainty. to ensure entitled Where neither any succession to applicable property by, statutes through nor the last will and ambiguous, adoptive testament from his parents.1 neither legislative The dissent intent testamentary nor argued depend intent that the statute legislative evinced a equity. resort to Furthermore, policy only there is no decision that those legal children language within unambiguous ly Last Will adopted could inherit. Id. at 608. Con and Testament of Neil Adam Seader from tinuing this line of reasoning, the dissent which we can discern an intent interpreted the statute legislative as a man provisions Wyo. §§ Stat. Ann. 2-6-106 and date precluding application equitable 2-6-107 not to the testamentary gift to adoption by courts for purposes of intestate Julie L. Schroeder. succession. [T39] The district Granting court's Order [T42] majority refused Lankford Summary Judgment and Order Approving accept the reasoning dissent, stat- Accounting, and Decree of Distribution are ing: affirmed. again [ Whe note that an overwhelming ma GOLDEN, J., dissenting, with whom jority of states that have addressed the HILL, C.J., joins. recognized applied equitable Because I doctrine [of believe adoption]. there is room for im More equity unique under the case, portantly, facts of it is unique I role of the courts dissent. regards With issue, the first equitable fashion protect remedies to application of the principles of equity promote the principles of equity such facts, these disagree I with the reasoning of as those at issue in this case. We are the majority opinion. The Wyoming Probate convinced that acting in equitable man Code specificallyprovides that principles of ner in this case does not interfere with the equity should be applied supplement Code legislative scheme adoption, for contrary to provisions to the equitable extent the princi the assertions of the dissent. Recognition ples do directly express contradict pro of the doctrine adoption does provisions. bate § Stat. Ann. 2-1- not create a legal adoption, and therefore 102(b) (LexisNexis 2003). The majority does impair procedures opinion finds express such an contradiction where I believe none exists. majority Lankford, opinion 489 S.E.2d at relies I heavily on a believe that dissent in a North the majority Carolina intestate succession has the support case to better ar- Lankford gument, its reasoning, especially Wright, concerning eq- 347 N.C. role of Lankford (1997). S.E.2d uity In Lank and the Equity courts. always avail- ford, the North able, intended, indeed is Supreme Carolina to fill gaps in Court ree- ognized applied the doctrine compliment law, with the whether common adoption under a more facts, standard set of law or statutory law. 1. N.C. Gen.Stat. by, Succession tion, and the heirs of such child, are entitled by through and from any property succession to by, through and (a) child, A adopted in accordance Chap- and their heirs the ter 48 of the General Statutes or in accordance same as if he legitimate were the natural applicable with the any law of jurisdic- other adoptive parents. Stat,. 2-6- dispositions." Aun. except in of his those the law
Equity follows
(LexisNexis 2008). Thus,
equita-
critical
party
entitle
matters
relief, although
rule of law
expressed
the strict
inquiry is Neil's intentions
ble
Holloway v.
intends
tion of
necessary unless
finds such
ing,
probate provision.
1922).
effective
persons identified
majority opinion claims
lapse
equity when
Code
ceased devisee be
descendant"
eannot
letter of
its enactment.
straight
[143]
as a
statute.
bow
paths
A
anti-lapse statute
contrary.
Thus,
property."
reading of the
the law
whole reveals
expects
necessary to "discover and
intent of a decedent
Jones,
equity to "broaden the class
express prohibition
diverge. As
To save
unambiguous and this Court
equity
mark,
he
prohibited
a lineal descendant.
Wyoming courts
246 S.W.
It is
accomplish the
the statute."
2-1-102(a)@®).
that the term
so
that the
bequest
Wyoming Probate
at this
the archer bends
majority opinion
equity
send
requires
be
by
applied when
in
in distribu
the arrow
point
legislature
from
bends
object
express
"Lineal
"lineal
apply
make
laps-
(Mo.
anti-
de-
his will.
tator,
ming Probate Code is set
plies unless the testator
in his will. In this
Thus,
code.
evinces
for the
lapse statute to
no indication
heirs would have
rather
no
cal
deceased devisee.
lapse statute is not a statute
an inheritance will
does not
dent.
[146]
question that
sons
it is
In other
only
If made to a lineal
anti-lapse
a
lapse if it made to a lineal descen-
code
It
anti-lapse
important
contrary
limits the conditions
is
determining
predeceased
that he did not want the
critical to note that
apply
apply.
*13
words,
if
statute to
one or both of the
taken "in
case,
statute
lapse. The inheritance
intention
to note
unless
Thus,
indicates otherwise
up
their
provisions of
automatically ap-
apply.
descendant,
intent of a tes-
Neil's intent is
place"
the testator
will
in
father, their
upon
devise,
"opt
the will.
provides
There is
biologi-
Wyo-
anti-
anti-
out"
place
take in
of the deceased devisee
less,
"issue
more,
in
than
no
or
descendant" means
devisee."
Stat.
of the deceased
line,
grandchild. The
eg. a child or
a direct
2008).
(LexisNexis
Thus, Kim
supplied.
remains to be
of "child"
definition
quoted
this Court
In In re Cadwell's
attempting to inherit
in
and Kirk are not
of "lineal descen-
approval a definition
right;
in their own
their own name or
301(v) (LexisNexis
"Child" is
dant" that
states,
"adopted
adopted
the definition
flict in
facts?
adopted child.
child,
facts for the
tion.
slightly
enquiry-should
adoption in the traditional
case does
expressed
directs
apply. The
[T44] Which
412,419-20,
Because Neil died
reading "equitably
I would
different
child"
child." No definition
even
defined
included
"[the
Wyoming
his will
of lineal descendant.
application
implies,
present
is limited to a
As
exclusion of an
brings me back to the
approach
equity
by Wyo.
such, I
manner.
intention
2008)
"an
controls the
P.
Probate Code
that the
adopted child." 26
see
testate, equitable
-
applied to these
standard set
of a testator as
sense
legally
Certainly this
including "an
no direct con-
Aun.
definition of
(Wyo.1920).
child"
expressly
equitably
does not
adopted
§ 2-1-
clearly
initial
effect
adop-
in
into
receive the
Julie's
him. The
did want Julie to
any
plifies
a non-relative? The
when read
one's status
ambiguous.
deceased as
clarification
complete consideration
cireumstances."
[147]
[1 48]
issue
resolved
only take in the
express
as his
inheritance
against
(Wyo.1986). The cireumstances
Neil's will
"[T
process.
question is: did he want
inheritance as his
daughter.
in his will.
language in the will
renders
)the
such
Julie based
Douglas v.
receive an inheritance
construction
determining the intent of
that is at
appears from
light of the
place
clearly indicated that he
majority
the terms of
I
I
believe
never clarified
believe
of Julie.
stake.
Newell, 719 P.2d
the entire will
opinion
daughter or as
of the will is to
this oversim-
referring to
surrounding
a full and
It is still
the will
decides
lack of
lack of
her to
from
any-
in
consistently
principles
indicate that Neil
equity
this case
treat-
exactly
law
what
inquiry
that,
determination of Julie's
mother
of Neil. I do not
daughter,
Neil. Julie is
Julie was his wife's
creating an
extrinsic evidence to resolve his true intent.
including the
family
equally
ed and referred
executed his
Neil,
[149] The
Neil considered Julie his
even Neil intended Julie to take as his
leaving
context creates a
in at
is
died,
Julie was never
if
automatically
ambiguity
will, treating all
least two
residuary
legally
nothing
she left her entire estate to
complication
believe, however,
to Julie as his
daughter.
not a lineal descendant
to Julie. Then Neil
provisions
clause.
at an end with the
legally adopted by
strong
his will
in this case is
daughter,
three children
status. This
When Julie's make effective the intent of a decedent
I
implication
believe the
daughter.
requiring
thus
will,
Shaw
then died intestate. The
the foster
Scott,
Minn.
precludes not
after
1934)
dictions
this court is
distribution of his
agreement
foster
finding
heirs
(collecting
217 Towa
equitably adopted.
accept
However, I
Fiske,
representatives. I is where
there is application room equity testamentary
affect Neil's intent.
[150] This case
summary
decided
Judgment.
I would reverse and remand this
intent. Did Neil intend only for Julie to take him,
if she survived or did Neil take for granted that daughter Julie was his and her lapse?
inheritance would If it can be
proven that Neil did want Julie to take as his
daughter, then I believe it appro- would be
priate principle
adoption, preventing thus Julie's share from
lapsing. This would then allow for Neil's
testamentary intent to be Applying fulfilled.