Lead Opinion
OPINION OF THE COURT
Thе question presented is whether a child born out of wedlock, who is adopted out of his biological family at birth, is entitled
Jessie C. Best died in 1973, leaving a will which provided for a residuary trust. Her daughter, Ardith Reid, was designated as the income beneficiary. Upon Ardith’s death, the trustees were directed to "divide [the] trust fund into as many shares or parts as there shall be * * * issue * * * and to continue to hold each of such shares or parts in trust during the life of one of said persons.” The remainder is to be paid to the surviving descendants at the latest possible date consistent with the Rule against Perpetuities.
Initially, the executors of the Best will, who аre also the trustees of the residuary trust, believed that Ardith had only a single son, appellant Anthony R. Reid, born in 1963. In 1976, however, they were informed that Ardith had given birth to a child out of wedlock in 1952, and that the child had been immediately placed with an agency for adoption. Ardith confirmed that the information was accurate.
Concluding that it was necessary to cite this unknown child in order to complete jurisdiction in a proposed accounting proceeding, the fiduciaries obtained Ardith’s authorization to ascertain the child’s identity and whereabouts. Attorneys contacted the adoption agency, which, though finding the request "unusual,” took the position that, given the apparently large value of the beneficial interest involved, the question of disclosure should be left to the discretion of the adoptive parents. A caseworker was dispatched and the adoptive pаrents subsequently revealed that the child’s present identity was David Lawson McCollum, and that requisite proof of natural ancestry could be obtained in a sealed file at the Surrogate’s Court, Nassau County.
After Ardith’s death, the trustees commenced this construction proceeding, seeking to determine the proper secondary income beneficiary or beneficiaries, the accounting proceeding having left the question oрen. On cross motions for summary judgment, the Surrogate’s Court, Westchester County, directed that McCollum be included as an issue of Ardith Reid and, as such, a beneficiary under the trust. The Surrogate declined to apply the common-law presumption that the term issue referred only to descendants born in wedlock, in favor of a rule espoused by the Appellate Division, First Department, which presumes that issue includes descendants born both in and out of wedlock (Matter of Hoffman,
Use of the term issue in a dispositive instrument has always been viewed as ambiguous, with its meaning depending on the intent of the decedent as derived from the content of the entire will (Palmer v Horn,
EPTL 1-2.10, added in 1966, defines "issue” as descendants in any degree from a common ancestor, unless a contrary intention is indicated, and specifically includes children adopted into the family, thus resolving a conflict which had existed in decisional law (see, 2 Simes and Smith, Future Interests § 738, n 40 [2d ed]) in favor of inclusion (9 Rohan, NY Civ Prac, EPTL ¶ 1-2.10 [2]; Note, Adopted Children as Issue — Settlor’s Intent, 27 Brooklyn L Rev 177). Other than that clarification, the Revisors’ Notes indicate that the section merely codifies decisional law (Revisors’ Notes to EPTL 1-2.10, McKinney’s Cons Laws of NY, Book 17B, p 22; see also, 9 Rohan, NY Civ Prac, EPTL ¶ 1-2.10 [1]; Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 1-2.10, p 20).
Contemporary social mores and constitutional doctrine governing the rights of children born out of wedlock suggest that drafters now view the unmodified term issue to refer to children born both in and out of wedlock (see, Matter of Hoffman, 53 AD2d
Powerful policy considerations militate against construing a class gift to include a child adopted out of the family.
Moreover, in order to encourage the adoptive relationship to flourish and solidify without outside interference, the Legislature has directed that the confidentiality of adoption reсords be maintained (Domestic Relations Law § 114). This secrecy, which we have identified as vital and beneficial to the entire adoption process (Matter of Walker,
Inclusion of adopted-out children within the ambit of class gifts
Domestic Relations Law § 117 certainly does not preserve the right to inherit a class gift in such circumstances. That section terminates all rights of intestate succession but does "not affect the right of any child to distribution of property under the will of his natural parents or their natural or adopted kindred” (Domestic Relations Law § 117 [2]). The evident purpose of the statutory provision, as expressed in the reports of the Bennett Commissiоn on the Law of Estates, was "to place the adopted child for inheritance purposes in the bloodstream of his new family just as a natural child, and sever insofar as possible all connection with the natural family” (Second Report of Temporary State Commn on Modernization, Revision and Simplification of Law of Estates, 1963 NY Legis Doc, No. 19, at 25, 147, n; see also, Legislation, New York’s Law of Estates and Distribution: The New York Status of the Adoрted Child, 38 St. John’s L Rev 380). Thus, while a child adopted into a family is to be presumed included within the term issue "[ujnless a contrary intention is indicated” (EPTL 1-2.10 [a]; see, Matter of Park,
We are aware of the passage of a bill designed to overturn the Appellate Division and Surrogate’s Court holdings in this case as
These developments, while of interest, are of no moment. Until this court has resolved an issue of first impression, legislative activity or inactivity does not constitute an endorsement of the result reached by other courts (seе, Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd.,
For the reasons stated, the order of the Appellate Division should be reversed, with costs to all parties filing briefs, payable out of the estate, appellant’s motion for summary judgment granted, respondent’s motion for summary judgment denied, and the matter remitted to Surrogate’s Court, Westchester County, for the entry of a decree in accordance with this opinion.
Notes
. Different considerations might apply in hybrid cases, such as where a child is adopted by two descendants in some degree from a biological parent or parents or by one such person and a spouse who is a total stranger to the family. That question is not before us and we express no opinion on it.
. Without more there is no basis in the dissenters presumption that the testatrix intended to include the respondent, a child adopted out of the family, within a generic class entitled to inherit.
Dissenting Opinion
(dissenting). I would hold that statutory law and the unqualified use of the term "issue” in the testatrix’s will compels thе conclusion that her adopted-out grandson is entitled to an equal share of the trust fund the testatrix created under her will.
Adoption was unknown to the common law and is solely a creature of statute. (See, Matter of Robert Paul P.,
Because the laws regulating adoption and the rights of adopted children are entirely statutory and in derogation of the common law, the legislative provisions must be strictly construed. (Matter of Robert Paul P., supra, at p 238; Matter of Malpica-Orsini,
Indeed, this court has recently emphasized, albeit in a different context, that section 117 was not intended to sever all ties between the adopted-out child and the natural family. In People ex rel. Sibley v Sheppard (
The foregoing is particularly true under the facts of this case. The testatrix knew that her daughter gave birth to a nonmarital
As is acknowledged by the majority, the intention of the testatrix is the most fundamental and critical factor in construing her testamentary provisions. (Matter of Cord,
The EPTL defines "issue” without any restriction or exception for adopted-out children. The entire definition, as codified in EPTL 1-2.10 both at the present time and when the will was executed, provides that:
"(a) Unless a contrary intention is indicated:
"(1) Issue are the descendants in any degree from a common ancestor.
"(2) The terms 'issue’ and 'descendants’, in subparagraph (1), include adopted children.” (Emphasis added.)
The statutory definition is unambiguous and unqualified, and nothing in testatrix’s will renders it less so. "Issue” includes all descendants, and there is simply no language in the testatrix’s will indicating a "contrary intention”. No distinction is made in either the statutory definition or the testamentary language between adopted-out and all other children. No specific individual is named or explicitly excludеd in the will. Despite the testatrix’s awareness of her adopted-out grandson, no provision whatsoever was made to treat him differently than her daughter’s other "issue surviving”. In my view, the testamentary language is sufficiently clear and unequivocal to preclude this court’s substitution of its own restrictive interpretation for a settled statutory meaning. (See, Matter of Watson, supra, at p 293.)
The general policy of confidentiality of adoption records ought not to effectuate the denial of a lawful testamentary bequest to an adoptee whose adoption was known to the testatrix and about which the adoptee and all other interested parties are well aware. There is no need here for secrecy to protect the adoptee. Indeed, there is neither need nor request here to unseal adoption records, as the details relative to the adoption have all been stipulated. Inclusion of the testatrix’s adopted-out grandson within the class of her daughter’s "issue” requires аbsolutely no contravention of the public policy invoked by the majority. Thus, the testatrix’s testamentary language and the governing statutory provisions being clear, and no compromise of a countervailing public policy being required to give them effect, the testamentary disposition ought not to be defeated.
Accordingly, it is my view that the Surrogate’s construction of the term "issue” should not be disturbed, and the testatrix’s adopted-out grandsоn was correctly held to be a beneficiary of the testamentary trust. The order of the Appellate Division should be affirmed.
Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Titone; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Meyer concurs.
Order reversed, with costs payable out of the estate to all parties appearing separately and filing separate briefs, appellant’s motion for summary judgment granted, respondent’s motion for summary judgment denied, and matter remitted to Surrogate’s Court, Westchester County, for entry of a decree in" accordance with the opinion herein.
. The phrase "adoptive child” was substituted for "foster child” in 1970, otherwise this particular provision of section 117 (1) has remained unchanged since 1963 (see, L 1970, ch 570, § 10).
. Similarly, in 1984 the Law Revision Commission acknowledged that under existing law adopted-out children may inherit under a will providing for dispositions to a class of persons such as "issue”. In a recommendation to the Legislature concerning the inheritance rights of adopted-out children the Commission noted that: "Under present law, an adopted person cannot inherit in intestacy from or through natural kindred, except a natural parent who is married to an adopting step-parent, even though the adoption was by a step-parent or other person related by blood or marriage and the adopted child remained within the natural family unit (DRL § 117). Conversely, under such law, an adopted person may inherit or benefit as a member of a class (i.e., 'children’, ’issue’, 'nieces’, 'nephews’) named as beneficiaries under a will or inter vivas instrument, even when adopted out of the family by persons unknown to natural kindred and after the adoption papers have been sealed (DRL § 117 [subd 2]; Matter of Best,
. We went on to state that: "[t]he bulk of the statute refers to intestacy and succession. Where any mention of other rights and duties is made, it is only in the context of the natural and adoptive parents’ parental duties (see, also, Domestic Relations Law, § 110). Nothing in the statute purports to abrogate the interests of the grandparents, and the child, in continued contacts.” (Id.)
. The nonmarital birth of the adopted-out grandson provides no grounds for a different conclusion. The requirements of both statutory and constitutional law mandate that individuals born out of wedlock be treated equally with "issue” otherwise similarly situated. (See, e.g., EPTL 3-3.3 [b]; 4-1.2; Levy v Louisiana,