*1 Dec. 1996.] S048669. [No. al., v. et Plaintiffs and
JON E. NEWMAN Appellants, al., BANK, Trustee, etc., et Defendants FARGO N.A. as WELLS Respondents.
Counsel Coufal, for Michael and Dan Johnson
Rebecca Michael D. Tracy Kinkley, Plaintiffs and Appellants. Schulman, Rabkin,
Howard, Rice, Nemerovski, & Ethan P. Falk Canady, L. and Beth L. Kramer for Defendants and Respondents. Janet Evans Opinion whether, the law of looking to decide
BAXTER, We areasked J. when a will is provision intent to a testator’s presumed as a guide intestacy will or at the time the the law in effect court should consider ambiguous, of a if child out to determine trust was executed testamentary “children” the testator the “issue” and ancestor’s family among designated benefit, in effect at the death or the law intended to should apply A., minor a creditor take. may Appellant, whom the child through ancestor Newman, was adopted by even Newman though E. claims that of Jon Mitchell, of Earl he remains a “child” Newman’s stepfather Mitchell’s father, of the will of Helen within the Lathrop, natural for the benefit sister, in a trust created and is entitled to share testamentary *4 deceased, their children. Mitchell’s and who is now siblings, of Mitchell on a in relies Appellant executed her will and died 1972. Lathrop in the law of intestate succession which permits “adopted-out” change of the trust if Other beneficiaries children to take a adopted by stepparent. will and when she that the in effect when executed the contend law Lathrop out her intent. died as that law applies, presumably carry intestate succession rights The Court of the law Appeal applied governing in time Newman’s natural children which was effect at the adopted-out in a beneficiary notwithstanding father died 1993 and held that Newman was that, since did not express contrary We conclude adoption. Lathrop 257, will, in Probate Code section intention the court must look to former at executed her will and the statute both at the time Helen applicable We, therefore, death, intent. the time of her to ascertain her presumptive Court of reverse judgment Appeal.
I
Background Belvedere, California, Helen a resident of died in December Lathrop, 3, will, 1972, to a Her left the residue of her estate 1972. dated November to her six brothers trust under which the income was to be testamentary paid sisters, “issue” living and or on the death of of them to that person’s the trust On the death of the last of siblings, right representation. of the the then children living estate was to be distributed per capita Marin County Superior The will was admitted to in the siblings. probate 1973, ordered estate was Court in and the residue of the Lathrop early trust, Bank, in May to Wells as trustee of the testamentary distributed Fargo will, trust, is admin- those of whose provisions parallel 1974. the San Francisco Superior under the istered the trustee supervision Court. Mitchell, father, of Helen Lathrop Earl a brother
Jon E. Newman’s natural trust, had Jon E. Newman died 1993. beneficiary and an income ad In the guardian his 1946. stepfather August been adopted by for an attaching of minor A. court order superior litem petitioned trust. The the income of the Lathrop of Jon E. Newman’s share of percent in an action in the was the defendant pending that Newman alleged petition Newman had entered into that the State of Washington, guardian court, that “John that had been approved by settlement agreement California court to to an order of the E. Newman has agreed stipulate [sic] Trust.”1 The of the income of the Lathrop petition attach 25% of his share Bank, thereafter Wells Fargo on November but granted trustee, to Probate Code for advice and instructions filed a pursuant petition had been The Wells that Newman Fargo alleges section 17200.2 petition Newman, asks if Newman was W. E. adopted by stepfather, death. The also Mitchell at the time of Mitchell’s petition “issue of’ Earl of the trust of that part advice the distribution to Newman sought regarding beneficiaries, trust been to Mitchell. The going apparent income that had A., Newman, minor were notice. *5 given as well as the of guardian including that they filed declarations Several other income beneficiaries subsequently in the earlier and they appeared had not received notice of the proceeding, trustee’s proceeding. 28, 1994, this made the order from which
On June the court superior 257, taken, the law Probate Code section was that under former ruling appeal will, Russell her and Estate in effect in when Helen executed Lathrop 1972 of was not the (Russell), Newman (1971) 17 758 Cal.Rptr. Cal.App.3d 88] no being contrary of Earl Mitchell for and that there any purpose, child trust, intended was found to have of intent in the Lathrop Lathrop expression with California in a manner consistent the terms of the trust to be interpreted that subsequent was executed.3 The court ruled law as it stood when the will 1993, 529, 5]; 6408 Stats. ch. former (§ [added changes by [added § § 1993, 529, 14, 1990, 79, ch. 721 and Stats. by Stats. ch. repealed § recites, alia, guardian of minor inter that the copy approving 1A of the order the settlement $175,000 on agreed judgment of on behalf of the minor an accept A. was authorized to the distribution assignment proceeds of the of that Newman execute an irrevocable condition share of the percent to attach 25 of Newman’s Lathrop stipulate of the trust and to an order income of the trust. undesignated statutory references are to the Probate Code. 2A11 the Code in effect at time Probate Code are to the Probate 3References herein to the former longer no in effect. to those Lathrop’s References to former sections are of death. sections inapplicable since were they expressly that 4]) interpretation did not affect § not that Newman is then found 6103.4 The court the terms of section under make no distributions that the trustee of trust and directed a the beneficiary In of Newman. or creditor to the benefit of Newman the trust or for from the issue it not adjudicated noted that had previously so the court doing, trust, no of the that notice and Newman was a beneficiary whether minor Newman and trust beneficiaries. had been to the given earlier petition share of claiming only Minor A. is party a notice of appeal. A. filed who in the Court Appeal.5 Mitchell Earl through appeared trust 257, from Probate Code section that under former conceded Appellant 1985, an not to the estate the person’s to did succeed adopted person since law He that intestacy. argued under the governing natural parents law, in former subdivision was set out section which in the Mitchell’s interest (b), Newman succeed to that should provided trust, intent she left law reflected when presumably of her siblings. interests “issue” and the remainder to “children” income it believed The Court of to rules of construction Turning Appeal agreed. provides apply if died provisions various Code do not a testator 4Section Probate 1, 1985, present It does affect January applies before and that former law instead. not (a) effect same 6451 or former section but section subdivision section expressly applies. and Newman, Claimant, ‘A’ minor appeal, 5The notice of which recites that “Jon E. Newman) attorney signed by Kinkley, Michael D. (judgment appeal,” creditor of Jon E. A., by opening attorney appellant’s an “John who is in the for minor for Mitchell” identified Johnson, claimant,” “Lathrop in the Court as a Dan B. Appeal brief trust Newman, Mitchell, guardian not Kinkley ad litem John were for minor A. John Mitchell parties although Washington that a superior of record court order directed action portion paid Kinkley. minor recovery A.’s from Newman’s share the trust law, general only party proceedings California in the trial Under as a rule of record to the Proc., 902; (Code may appeal. court Civ. Garrison v. Board Directors *6 Witkin, 214]; (3d 1985) Appeal, Cal.App.4th Cal.Rptr.2d 1670 9 Cal. Procedure ed. [43 135, 145.) a p. probate proceedings, While this rule is relaxed for beneficiaries in some § (In Marriage (or beneficiary), including attorney of an estate an creditor re creditor of a of (1988) 611]), in the Tushinsky Cal.App.3d Cal.Rptr. 136 not have interest 203 does an [249 appeal person the had subject proceeding standing matter of sufficient to confer to unless the 80, (1975) Cal.Rptr. party Cal.App.3d made himself a of record. Cross 88 [123 of Witkin, 58, 825]; 433]; Partridge Cal.Rptr. Cal. Cal.App.2d of Here, Procedure, 138, 148.) the respect the to trusts. p. The rule is same with Appeal, § notwithstanding only, the appeal is of Jon A. notice of on behalf E. Newman minor A., Johnson, guardian given notice counsel as of minor was signature of for “John” Mitchell. through Kinkley, in the filing papers, counsel apparently party a of record became superior proceedings. court Appeal apparently and has as Jon did not file a brief in the Court of Inasmuch E. Newman it was is minor A. When appeal, only party properly the the before this court abandoned Washington, appellant, is not an Kinkley, that member of of the State of discovered a the bar guardian granted represent vice Johnson as sought pro he and was hac status and continues to Court, (See A. of for minor Cal. Rules rule that court observed applicable, was Lathrop presumptively aware that the laws inheritance of governing rights children adopted might change after death; her that this the fact presumption strengthened that the laws lifetime; had governing inheritance been amended her drastically during ancestor, estate, she had used life designated and the words living” “then as the for and that her will an gifts; intent to benefit prerequisites expressed the children of each her These led the Court observations siblings. to conclude that the whether Newman was “issue” of Mitchell within Appeal trust had to be decided under law in effect the when Newman’s died in father and not the law in effect in when died. The court therefore reversed the order the court superior and remanded further on for whether Newman was the issue findings Mitchell under that statute. income to four beneficiaries of the trust whom a
Respondents, portion will be distributed the death of the corpus last contend that upon sibling, the rules of on construction which Court of relied govern Appeal of class but are not timing gifts, testamen- vesting applicable defining result, terms tary such as “issue.” The is inconsistent with they argue, which holds that the statutes and controlling precedent, adoption policies at the a will time is executed determine who is included in a prevailing class gift “issue” or “children.” also note that the They Legislature expressly that the statute under provided which Court of decided that Appeal Newman should be treated as issue of Mitchell did not to the estates apply decedents who died before 1985. January
n
Discussion Former Probate Code section 257 from 1955 provided through 1985 (Stats. 1955, 2690): ch. “An child shall be deemed adopted him, child, who descendant of one has the same natural all as a for adopted from or purposes by, through succession the same adopting parent a natural An not estate of a parent. child does succeed to the natural adopted when them between has been severed parent relationship by adoption, child, nor does such natural succeed to the estate of nor parent such does such child succeed to estate of a relative of the natural *7 nor does relative of the natural to the estate an parent, any succeed of parent child.” adopted 1, 1985, Code,
Effective of the former Probate includ- January provisions 842, 19, 1983, 3024) (Stats. former ing section were ch. repealed p. § (Stats. former section 6408 containing new by and replaced provisions, 55, 842, 1983, 3083). The new section the establishment permitted ch. p. § and the person person’s between an relationship adopted a parent-child 6408, subdivi- Former section under circumstances. natural parent specified 1985, and the (a) provisions governing parent-child sion was amended in were or her between and his natural parent an adopted person relationship 1985, 6408.5, section, (a). (Stats. new section subdivision in a former placed 6408.5, 982, code, 3118-3119.) section ch. The former §21, pp. including code, 1990, 13, 79, 463) in ch. a new (Stats. and p. was repealed § 6408, new, was as section containing substantially similar provision 1990, 79, 14, (Stats. 721).6 ch. enacted § 1993, (b) of in
At the time Newman’s natural father died subdivision (former 6408(b)) section former section provided: not exist between an relationship child does parent “The of the following require- natural unless both person person’s parent ments are satisfied:
“(1) The lived time parent natural and the at adopted person together child, to, cohabiting or the natural was married or was parent parent with, the other at the was and died natural time the child conceived parent the birth of before the child.
“(2) The or of either natural adoption by spouse parents death of after the either of the natural parents.”7 6414, former (a), Section subdivision limited application expressly 1, 1985, 6408(b) to on or section estates of decedents who died January It does where died thereafter. states: not the decedent part apply “[T]his 1985, 1, January before and the law January prior applicable continues to where the decedent died before 1985.”8 apply January on its not The Court did discuss the section Appeal impact 6408(b) of former section to the trust. application (Stats. 1993, 4) repealed by section replaced 6This section was and was ch. 6451. by court superior stepfather 7The found that Jon E. Newman had been his 1946. no adoption, also recites he with but made The order had resided Earl Mitchell before had had belief that Jon finding petition alleged to that effect. trustee’s on information and years Earl about resided with Mitchell until Jon was four old. governed 8Only part effectively disposed of a that is will is decedent’s estate not Therefore, (§ are relevant statutory rules of succession. these statutes intestate Lathrop will only they may helpful construing extent terms in the here used (Ibid.) carry Lathrop. and trust in order out the intent Helen *8 134 that the Probate Code construction agree provisions governing parties to construction of a decree of distribution of a testamen
of wills also apply
(See
decree
of the will.
Estate
Joslyn
trust when the
tary
parallels
of
616];
(1995)
(1977)
Estate
38
1428
Cal.App.4th
Cal.Rptr.2d
[45
of Newmark
628].)
67
350
Cal.Rptr.
Cal.App.3d
[136
of
as
in the instrument
“The intention
the transferor
expressed
controls the
effect of the
made
the instrument.”
legal
dispositions
“
wills,
21102,
(a).)
rule in the
of
to
(§
subd.
‘The
construction
paramount
which
is that a will is to be construed
to
according
all other rules must yield,
therein, and this intention must be
the intention of the testator as expressed
63,
(1920) 184
66-67
(Estate
effect as far as
Wilson
Cal.
given
possible.’
of
581].)
(§
P.
The rule is imbedded in the Probate Code.
Its
[193
meant
he used.”
language
is to ascertain what
testator
objective
(Estate
by
200,
561,
444 P.2d
(1968)
Russell
205-206
Cal.Rptr.
[70
of
353],
omitted.)
fns.
available,
Where extrinsic evidence is not admissible or
a reviewing
(Estate Dodge
court will
construe the terms used in a will.
independently
311,
801,
385];
(1971) 6 Cal.3d
318
P.2d
Estate
491
Cal.Rptr.
[98
of Elkeles
374,
if
(1979)
377].)
377
the terms are
Only
90 Cal.App.3d
Cal.Rptr.
[153
which
a legal
will the court resort to
create
ambiguous
presumptions
pre
(Estate
356),
of intent
but
sumption
of Newmark, supra,
Cal.App.3d
“child,” “children,” or “issue”
otherwise
terms such as
unambiguous
may
will and the circumstances in which
the context of
ambiguous
particular
Thus,
are not
in most
was executed.
while these terms
ambiguous
21122;
(§
cases
be considered
former
ordinary
use words must
Code,
106),
Prob.
as the enactment of former section 6408 and former
§
Probate Code
when a child has been
into or out
section
suggest,
of the testator’s
and the will is not
with
regard
rights
family,
specific
child,
(1944) 64
Craig
a latent
exists.
ambiguity
100].)
P.2d
Before
Cal.App.2d
resorting
legal presumptions,
[148
however,
instrument,
to ascertain
as with
written
the court must
attempt
the will
a whole and the circum
intent of the testator
by examining
Code,
103;
stances at
of its execution.
former Prob.
(§21121;
the time
1428, 1433; see,
v.
Parsons
Joslyn,
e.g.,
Cal.App.4th
767, 402 P.2d
Bristol
Co.
Nothing she directed that trust intent with children when regard adopted-out *9 that on the death sibling to the issue of a deceased income be paid of her then children living be distributed to the the trust corpus last sibling siblings. the trust outside “issue” one will provision used the word also
Lathrop survivor, or, wife, if or the to a husband and real is left which property All issue, of representation.” “to their by right Lathrop both predeceased Lathrop on the devisee surviving were conditioned other bequests specific child, children, declared that issue. also the terms or Lathrop and none used However, it seems clear of deceased children.” no “children or issue she had i.e., understood meaning, the term “issue” in its commonly that she used children, etc. beneficiaries or grandchildren, direct descendants of the named to the then living of the trust The limitation on ultimate distribution corpus “issue,” to her of her siblings’ “children” siblings “per capita,” opposed not siblings intent that the Lathrop’s reflects an apparent grandchildren of the siblings The instruction that the children take a share the corpus. all of reflects an intent that take and not “per capita stirpes” per their share take an share of what regardless nieces and living nephews equal however, in is of the trust income have been.9 None of this may helpful, and “children” include a whether intended that “issue” ascertaining Lathrop before the will was executed who had been aby stepfather nephew as a “child" of Lathrop’s and thus at that time was not legally recognized brother Earl Mitchell. created the will.
Earl Mitchell was a named of the trust beneficiary had occurred of his son Jon E. Newman Jon’s adoption stepfather 1946, death. more than 25 before the will was executed and Lathrop’s years No extrinsic offered below to establish whether evidence was equal regardless of the taker’s per capita 9In distribution the estate is distributed in shares 791, 195, (Estate Begley (1988) Cal.App.3d proximity relationship to the deceased. 632].) Cal.Rptr. fn. 1 [247 ancestor, “By right share of an immediate representation per stirpes taking or ‘means so on until a common ancestor who in turn takes the share of his next immediate ancestor and ” 415].) (Estate of Careaga (1964) Cal.Rptr. 393 P.2d is reached.’ 61 Cal.2d 476 [39 “Taking person together take the share ‘per stirpes’ denotes that the descendants of a deceased taking by right of This is person which the deceased would have taken. [Citation.] per ‘per capita.’ In a representation. per stirpes The antithesis of [Citation.] [Citations.] distribution, children or many equal shares as there are capita property is divided into as children, deceased child surviving child or descendant of a descendants of deceased with each taking right.” individual taking one share. This is in an heir’s own [Citation.] 779].) Edwards Cal.App.3d Cal.Rptr. 1372 [250 of Careaga, supra, “children” Unlike the court’s conclusion in case, in that here in the decree construed and “issue” had the same as used the former by providing that testator made a clear distinction between “children” and “issue” per capita per stirpes. take and the latter aware of the or adoption whether she intended that children out of of a be on an family sibling with equal footing child’s adopted-out *10 cousins when either income or remainder distributions from the trust were Thus, made. we find on the nothing face of the will or in the circumstances of its execution to us in guide the intent of the ascertaining testator with to the status of Jon respect E. Newman other than the fact that he had been relevant, out at the time the adopted will was Lathrop executed. Also however, is the fact that to have been an appears prepared or other attorney familiar with the person Probate Code. The will is in proper form, terms, includes all standard one uses technical and provisions, many Copy” in the record bears an copy dated the will on the date stamp “Office was executed.
B. Presumptions in aid construction.
A testator is to be aware of the reflected in presumed public policy the statutory definitions of the terms used in a will at the time the will is executed and to intend that those definitions be followed in construction of the will unless a intent is in the will. This is contrary expressed presumption when an strongest has drafted the will attorney because an instru “[w]here law, ment has been drawn one skilled in the and legal presence used, technical terms is an indication that the term of art has been legal therefore is to be in accordance with its definition. accepted, legal [(1931) Thompson (64 984)]; 18 P.2d Maud v. Catherwood Cal.App.2d (1945) 67 111].)” (Wells P.2d Bank v. Huse Cal.App.2d Fargo [155 (1976) 522].) Cal.App.3d Cal.Rptr. [129
Three California decisions
these rules to the inheritance
applying
rights
stated the law and
adopted persons
of which
public policy
will;
aware at the time she
presumably
executed her
two of them were
earliest,
decided
before her will was made. The
Estate Heard
only
year
(Heard),
In next Cal.App.3d a child determine the rights extended the of Heard to reasoning correctly There, the will created a testa out of a trust beneficiary’s family. *11 “children or issue surviving” trust under the terms of which mentary life estate on his received the income share of their ancestor’s beneficiaries death, that the terms the remaindermen. The will or her and were provided before, “child,” children but not included adopted “issue” and “descendants” after, to a was whether a child bom the death of the testator. question testator, before the but out of a life estate after the death of adopted recipient terminated, in the trust. the tmst had interest any with the status of The trial court found that the testator was familiar and did not for the that a class remain adopted persons provide possibility intended, however, the He that his derman would out of adopted family. the the law and in effect at the time will be with compatible public policy the that basis the trial court concluded that rights will was executed. On any the on the child or issue of child had were dependent being adopted-out Therefore, he at her He not. neither life the time of death. was beneficiary on nor his issue had interest in the income or of the trust. corpus Relying Heard, to in Heard the Court of affirmed: “The alluded Appeal public policy lineal descendants of their is that which that children are recognizes adopted him virtue of foster and are in the line of descent from parent [sic] command, blood if line had been established by the same as statutory the (49 518.) In has been ties. Cal.2d at this state such p. policy expressed the as embodied statutes Legislature adoption [citations] children succession statute for the inheritance providing rights adopted Heard, 519-522.)” (See Estate Cal.2d 514 at (§257). supra, pp. 49 767-768.) (Russell, 17 at supra, pp. Cal.App.3d Heard, the Court of that the case the converse of Recognizing presented no Code section 257 had a claim that former Probate rejected Appeal distribution, that the a and held under rights testamentary application was that there had been a severance complete effect of section 257 In the relatives. biological of the with his person former relationship adopted law, (Russell, 17 supra, he no their “kindred.” longer eyes 769-770; (1963) 222 at see Estate Goulart Cal.App.3d pp. Cal.App.2d 465].) Cal.Rptr. [35 Haneberg Cal.App.3d Cal.Rptr. 807] intent, the third decision which informed (Haneberg), presumably Russell, was decided after and also involved children out of shortly differed, however, a as the testator had family. Haneberg beneficiary’s will and died in when executed the at time respectively, out of former Probate Code section 257 that while a child provided inherit did not his or her he or she did take from natural family parent tiie natural from an ancestor or collateral relative. Applying through parent testator, the existing that the who “was bound to know presumption will,” he statutes at the time executed affecting testamentary dispositions class gift intended that the son of share in a natural the testator’s grandson children, child had been the “issue” of the testator’s even though (19 at adopted by stepfather. Cal.App.3d Huse,
More in Wells v. Fargo Bank recently Cal.App.3d at court that a testator is aware of the law applied presumption applicable *12 of the the time a will is executed and intends that law to construction govern will to a trust which failed to whether the term “lawful” issue was specify here, restricted to natural bom issue or included children. As there adopted intent. The court noted was no extrinsic evidence on the trustor’s bearing the the execution of a document that circumstances among surrounding statutes, case law which be considered in it were “relevant may interpreting of the document in effect at the time of the execution public policy which, intent, a in the absence of a are deemed to become part contrary 514, (1957) Heard Cal.2d 521-522 the scheme testamentary 120, 637]; P.2d Estate Cal.2d P.2d [315 of Stanford 681].)” (57 at Cal.App.3d free to the court is not
Contrary assumption appellant, the change from these that 1985 statutory depart precedents presume a may under which a child out of a decedent’s adopted family by stepparent that still inherit reflects intent. The has acknowledged Lathrop’s Legislature to reflect a the law and in effect when a dies is presumed policy person children, intent with to the status of including decedent’s regard adopted did in section children out of a decedent’s It so family. adopted (a), of the subdivision which as noted above precludes application the status of in the law of intestate succession governing adopted-out change became effective. By children to decedents who died before 1985 change of the new policy permitting this limitation on the creating application succession, the Legislature certain children to take intestate adopted-out in with accordance not their estates distributed did want who gave persons or, not if had made their wills they to change the new the opportunity policy will, of an adopted-out the status addressing with provisions to make one a is intestate succession aware that the law of is child. Since Legislature will, the of a court must the terms the court construe often a referent when of the application limitation on retroactive must this legislative respect a children by stepparent. the status of governing policy in therefore Heard (a) reasoning court’s Section subdivision this must to find the to the court look a conclusion that the law which compel the law in children is with to regard intent of a testator presumed laws, the Were to look to later enacted a is executed.10 we effect when will in section with the reflected be inconsistent legislative policy result would a that testator who (a) and we would have to assume subdivision words testator is aware of the current presumptively in a class to children gift or her using identify recipients bounty to issue, change or intends future to the pattern a permit Legislature of intestate distribution mortem of the law post amendment through succession. of a future that made a argues gift because
Appellant alternatively class, the death of a are not identified until interest to and members class ancestor, identify the statute we should designated apply in when Earl who effect take under will is statute persons Joslyn, supra, Mitchell died. The Court of did so Appeal case, some cases an adult holding Cal.App.4th adoption after the death of testator changes occurring may public policy *13 There, executed, was not considered. at the time the will was adult adoption in distribution of the California. That before permitted changed policy a trust estate to class of be effected. beneficiaries was designated court of members of therefore considered authorities which hold the identity a which class to is made is ascertained as of the date on which gift 142,151 (Estate (1975) ancestor dies. 53 designated Cal.App.3d of McCallen 645]; (1963) Estate Miner 214 540 Cal.App.2d Cal.Rptr. [125 [29 601]; 434, 441-442 (1962) Estate Doyle Cal.Rptr. Cal.App.2d [21 123].) rule an adult adoptee The court reasoned that under that Cal.Rptr. would at the time the testator’s be descendant” of testator’s son “living such at son died even not have been considered would though adoptee executed, argued changes 10It but before the can be that when the law after a will death, change if competent we testator the will the new presume testator’s should that a would in such present law not his or her We need not decide here whether does reflect intent. at the of a testator’s death for circumstances a court should look to the law in effect time Lathrop change in the time presumed testator’s there was no the law between intent because executed her will and the time her death. the time the will was executed. that a Finding relation- strong parent-child had been established between a in ship raised stepchild family ancestor, designated Joslyn court the rule that the members of the applied class are as of the date of ascertained death of the ancestor in designated whether the determining claimant was a descendant. Joslyn, supra, 1428, 1440.) 38 Cal.App.4th court, In the before case this Jon E. Newman had been out of the of Earl Mitchell when Mitchell died in that family 1993. At time the class of entitled to share Mitchell’s income persons interest in the trust closed. in the class was limited to “issue” Membership of Mitchell in existence at the time of Mitchell’s death under the rule but class applied Joslyn, closure rules do not tell us whether should be to have presumed intended that Newman be considered “issue” even Newman was no though longer law as a son of Mitchell. recognized by above,
For the reasons stated we do not with that a agree Joslyn legislative change that is enacted public policy death of a testator subsequent may deemed to reflect the intent of fairly the testator. We presume of, in a will are provisions made with an and an intent to act understanding to, the law and as it exists pursuant when the will is executed. public policy It is more reasonable to assume that a testator who intends a different will make disposition the status of express provision governing children than to assume that the testator intends that their status not be established until some future time and be fiat. contingent upon legislative (b)
The Court of also relied on subdivision of section Appeal which provides of a class at the date persons answering description a future interest is to take effect are included the class. That section refers identified, to the time the class are members however. It does not state that the law then in effect defines the terms used to describe the class.11Estate of (1993) 676], Woodworth and Estate Cal.App.4th Cal.Rptr.2d [22 35], relied, Liddle P.2d on which Woodworth Cal.App.2d construed the term “heirs” as those entitled to take persons intestate succession whose identities must be determined as of the death of *14 “heirs,” provides 11Section 21114 “family,” that a transfer of a future interest to “next of kin,” import,” designated person, persons “or words of similar of a the transfers interest person’s who would be that in heirs under the law of intestate succession effect at the time the transfer to take import" is effect. We need not decide if “issue” is a “term of similar under this section, 806, (Stats. 1994, 41) as the section was not enacted until 1994 ch. and does not apply (§21101.) if a will requires or its context a different distribution. As section 21102 explains: legal “The of expressed intention the transferor as in the instrument controls the (b) dispositions expressed effect of the made in the instrument. The rules of construction [SD part in apply this where the intention of the indicated the instrument." transferor not
141 “heirs” ancestor. construction of the term was the The court’s designated those who met that definition were to of its independent holding persons (18 the ancestor. be as of date of death designated determined 943.) (1971) v. Title & Co. 22 at Wells Bank Ins. Trust Fargo p. Cal.App.4th trial is to the same effect. There the court Cal.Rptr. 464] Cal.App.3d [99 life a remainder to heirs of the of a estate with the held that the grantor died issue should be deter- heirs if other remaindermen without grantor’s of The Court of this as recognized mined as of the death the grantor. Appeal rule, the facts of that the but found an on case. general exception applicable was the on which class members were to be ascer- Again, the issue date tained, (22 299-300.) the of at Estate meaning Cal.App.3d not “heirs.” pp. 549, Ash 413 P.2d addressed (1966) Cal.Rptr. 149] [50 in the no the law on construction of change date of involved vesting Miner, involved a class supra, terms. Estate also gift Cal.App.2d that the statute of to and the rule that this reflects an intent heirs designation as of death of ancestor to succession is the date of the designated applied determine defini- class There was no in the statutory the members. change tion between the was the date of death of of heirs date the will executed and McCallen, ancestor. In Estate designated Cal.App.3d will, that, the court said intent reflected it only contrary absent was that the intended that the will construed confor- testator presumed the law and under which an child had the same mity with policy the will status as a natural child. The children had been after was but the law had There no that the holding executed not was changed. or of “children” “issue” as used in the will should be determined after under a law enacted the will was executed. note,
As cases concerned with the of class closure are respondents timing not class members. construing terms that intended helpful identify one of these cases Court of relied is Only on which the arguably Appeal case, 283], P. relevant. That Wilson Cal.App. There, does not the Court left a life estate in testator support Appeal. husband, to her most of which had been inherited from her son property, children, with he to the testator’s a remainder to or if died without issue “ California, ‘heirs, if the same as laws of the state of provided by [the ” (Id. intestate.’ law at the time the had died at Under the testator] executed, will the law all decedent’s property, was of a intestacy gave source, of its to heirs. later law regardless years the decedent’s Several was that had been the changed separate property provide property went the relatives of the Two spouse. predeceased spouse predeceased that the son issue. years after died without
The Wilson court
that the testator
deliberately adopted
concluded
had
law in
known to her at the time the
existence
presumably
*15
will,
executed. Absent a
intent
the court would not
contrary
expressed
unknown,
that she intended to
an
nonexistent statute as the
presume
adopt
Wilson,
which
means
to
of her
designate
objects
gift.
680, 687.)
We reach a similar conclusion here.
Cal.App.
on out-of-state
also
that a testator
Relying
authority, appellant
argues
to
should be
know that the law
after the will is
presumed
change
may
executed and therefore intends to have
used to
terms
members of a
identify
(See
class construed in
of the law in
light
effect at the time the class closes.
(1992)
Solomon v. Central Trust Co. N.E. Ohio
III
Disposition of the Court of is reversed. judgment Appeal J., Mosk, J., J., Chin, J., Brown, J., C. concurred. George, Werdegar, KENNARD, J., The testator in this established in her will case Dissenting. trust. She that certain income under the trust should testamentary provided to the “issue" of her brother and and that the should go corpus go sisters married and the “children” of her brother and The testator’s brother sisters. son; later, mother. The mother remarried had brother divorced the son’s *16 of the one of the “issue” Is the son the son. new husband and her father) distributing of for (the purposes son’s natural brother testator’s brother for of the testator’s of the “children” the son one trust income? Is the trust distributing corpus? purposes In seeking process. is a straightforward these two
Deciding questions intent, of the words “issue” ordinary meaning we look to the testator’s made which it was under the circumstances “children” unless the or Code, (Prob. former intention the testator. by §§ disclose a different 444 P.2d 106; Cal.2d Cal.Rptr. Russell surround- case, circumstances in the will or the 353].) there is nothing In this “children” “issue” and intended the terms that shows the testator it ing The ordinary meanings their ones. other than ordinary any meaning carry between relationship “children” include the biological the terms “issue” and here, when, bom in the child is its natural least a child and parents—at of time— for a significant period and lives with its natural parents wedlock the new is then by divorce and the child even if the later parents Therefore, entitled to in this case is the son of one of the parents. spouse in the trust the testator established. share not one that the son was
The concludes majority contrary brother, whom father with or of the testator’s his natural “issue” “children” first reaches its conclusion by lived for his first four The majority he years. the mean- children that in the case of adopted creating legal presumption in a will should “issue” and “children” as used terms ings the terms but by applying determined not ordinary meanings by view, the son is the issue In the intestate succession statutes. majority’s father’s family inherit from his natural his natural father if he could only at the testator) statutes. Because under the intestate succession (including inherited, the so majority time of the testator’s death the son could not have of his natural is not one of the “issue” or “children” concludes the son father. established will construction the mies of ignores majority’s approach court. At the decisions of this as well as the Legislature previous case, that California had
times relevant to this the Legislature provided the beneficia- to use succession statutes to identify courts were the intestate terms: had used one of the following ries of a class if the testator gift only relations,” “heirs,” “relations,” “legal representa- “nearest “representatives,” next) of kin.” tives,” (or “nearest “family,” “personal representatives,” listed, Code, one of the terms (Prob. 108.) Because “issue” is not former § not define a class does held that term to using this court has that a testator intestate succession under the reference the class takers incorporate *17 statutes. Pierce 1].) Cal.2d P.2d 269-270 Rather, when a designates testator a class of a beneficiaries term by using other than those listed in former section we should the ordinary apply term, of that absent evidence of a different intent the testator. by Code, 105; Russell, (Prob. former §
I Helen made a will one month before her death in in which childless, she left the residue of her estate to a trust. she testamentary Being brother, Mitchell, left the income of the trust to her five sisters and her Earl “Provided, however, to this condition: subject that if of them shall be trust, deceased of the term of during this issue then any part leaving living, said issue shall take the share of income to which the deceased of them (italics added). would have been entitled if then . . .” the death living Upon of the last the trust is to terminate and its is to be distributed sibling corpus “to the children (italics added). then brothers and living my sisters” Mitchell, brother,
Earl the testator’s was the father of Jon Newman. to the According Newman was bom parties, 1936 during marriage Mitchell and Newman’s mother. According tmstee’s verified petition, which the do not Newman lived with his natural from parties dispute, parents Thereafter, his birth until the of four. age Mitchell and Newman’s mother divorced, and the latter remarried. Newman was his stepfather adopted by 1942.
Mitchell, father, death, Newman’s natural died in After 1993. Mitchell’s Newman settled a lawsuit him minor in the brought against State of by a 25 Washington by assigning share of the trust income to the minor. percent The latter to attach Newman’s share of the income sought tmst by filing Court, in the San Francisco which petition order. Superior granted Thereafter, trustee Wells Bank for instmctions Fargo petitioned pursuant section 17200 of the Probate Code as to whether Newman was entitled to share in the trust’s income as Mitchell’s “issue” and whether Newman was entitled to share in the tmst’s as one of Mitchell’s “children.” Other corpus beneficiaries, who had not in the previously participated, appeared superior court the minor’s claim that Newman was a proceeding opposing beneficiary under the tmst. Newman also in the appeared proceeding. court,
The the tmstee’s concluded that the superior deciding petition, term “issue” should be defined reference the law of intestate succes by Code, (Prob. sion as it existed at the time the testator her will executed law, Newman, 257). former that ruled court Applying superior was not the issue of his biological been having stepfather, father, Mitchell, Newman would not have inherited from Mitchell because died The Court of and held that the disagreed, had Mitchell intestate. Appeal term “issue” should be defined reference to the law of intestate succes- sion in effect at Mitchell’s death when the interest of his “issue” vested. law. Court of remanded the case to the court to apply Appeal superior The interested beneficiaries this court for review. petitioned
II Testators often the of their a class identify recipients bounty by describing of in general terms rather than its persons by individually identifying case, members. In this trust identifies the “issue” of Lathrop’s testamentary her brother and sisters as a class of income beneficiaries and identifies the “children” of brother and sisters as the of class beneficiaries of the trust The task here is to ascertain whether Newman is a member either corpus. classes, is, or both whether Newman is the “issue” or one of the Mitchell, “children” of Newman’s natural father and the husband of New- man’s mother at the time of Newman’s birth. notes,
As the the of this majority goal is to effect to the intent inquiry give Code, 21102, (Prob. the testator in the expressed words the will. former § 101.) intent, To discern the testator’s a court looks to the words of the will § Russell, (Estate and the circumstances which it was made. supra, 69 200, 210; Code, 105.) Cal.2d see also Prob. former The words of the will § sense, are to be understood in their unless the will itself or its ordinary surrounding circumstances disclose that the intended testator another mean- Code, (Prob. 106; Russell, former ing. supra, § 210-211.) asserts that the terms “issue" and “children” are majority inherently child whenever a has been into or out of a and
ambiguous family adopted not with “the is child.” specific regard rights (Maj. ante, however, 134.) at It the takes that these asserted opn., position, should be resolved not the circumstances sur- ambiguities by examining the will rounding to decide which the evidence best but supports that the applying legal meanings testator intended that the presumption those terms be determined the laws of intestate succession. It by applying then focuses on the of whether to the intestate succession question apply laws as existed at the time of Mitchell’s death or those laws as they they existed at the time of the death. The will and testator’s making chooses majority the latter and concludes that Newman is not approach father, Mitchell, issue of his because Newman would not have biological intestate succession for provisions Mitchell under the inherited through (hereafter also Code former section 257 children set forth Probate law in effect at 257), the intestate succession referred to as former section the time of the testator’s death. the will was drafted and at the time view, begin by examining I In place disagree. my proper as are used in the and “children” they of the terms “issue” meanings ordinary drafted and time will was existed at the will. Our statutes they their “issue” and “children” us to the terms give at her death require sense, them in a clear intention to use unless “ordinary grammatical collected, (Prob. that other can be ascertained.” sense can be another Russell, 106; Code, Cal.2d also Estate former see as Probate Code 210-212.) (This in substance today continues provision section “issue” sense of term encompasses
The ordinary
grammatical
Pierce,
*19
of
and offspring.
blood relationship
parent
biological,
of
is “offspring
of “lawful issue”
meaning
supra,
[ordinary
[defining
Intemat. Diet.
p.
Webster’s Third New
parentage”];
from a
one or more
descended
. . . :
persons
“issue” as “offspring, progeny
alter or sever this
ancestor”].)
a
cannot
common
Adoption by
stepparent
blood relationship.
(1916)
This court’s conclusion intestate, case, A died A’s In that this “issue.” understanding supports A, out of (A’s B’s son C had been adopted son B grandson) predeceased that, under intestate succession statute at the time provided the family. death, the “issue” A’s would togo the circumstances A’s attending property whether, with to his grandfather of B. The Darling respect question court, A, This apply- his notwithstanding adoption. C remained B’s “issue” “issue,” (Id. 226.) the said at yes. p. term ordinary understanding an ing aunt, Newman, Mitch- his remained here with to Lathrop Similarly, respect his his after parents’ issue notwithstanding by stepfather ell’s adoption divorce.
Likewise, “children” sense of the term ordinary grammatical parent offspring. blood biological, relationship encompasses Dict., “child” as “a (Webster’s [defining Third New Intemat. p. the first descendant in degree: son or a a male or female daughter: is not relationship this Again, of human parents”].) immediate progeny Therefore, in this case the child. later adopts severed when stepparent of the term. meaning within the ordinary Newman remains Mitchell’s child Next, and “chil- will uses the terms “issue” I consider whether Lathrop’s sense, between the will for a established relationship dren” in a related terms. on of those shed light it uses can terms that different “issue” and of the terms the meanings I conclude that the majority, Like them used of the way in this case because are interrelated “children” “issue” of her income to the the trust In addition to distributing in the will. death of her last-surviving upon provides siblings, then living my “to the children is to be distributed the trust sibling corpus conclude, that in as does the added). majority, I (italics sisters” brothers and use of the term intended her as a whole Lathrop context of the will of her of the “issue” to the first generation to distribute the corpus “children” ante, that suggests There is nothing at (Maj. opn., siblings. of her siblings’ of the first generation that she intended for any contrary in the as one not also to share corpus in the trust income but “issue” to share “children,” her “children” siblings’ she intended for or that as an “issue.” not to share in the income share in the but corpus Thus, used in the will should to those two words as the meanings given that I other. The ordinary meanings and harmonious with each congruent are “issue” and “children” congruent have discussed above of the terms “children,” because, the first under those the term meanings, designating accords of “issue.” This the first generation progeny, composes generation terms, for it too uses term “children” with the will’s use of those two the first of “issue.” designate generation Code, (Prob. former
There is no evidence in the will of “clear intention” *20 sense; the 106) to use the term “issue” in but its by any ordinary Lathrop § ante, seems clear that she so concedes. at majority (Maj. opn., [“it Nor is there used the term ‘issue’ in its understood commonly meaning”].) term to use the evidence the will of a “clear intention” any by Lathrop “children” in but its sense. ordinary to I consider the under which the will was drafted circumstances
Finally, intended the terms see whether these circumstances show that Lathrop “children,” and to exclude “issue” their contrary ordinary meaning, Newman, Mitchell. the son of brother biological legitimate Code, 106; Russell, Prob. former Estate Cal.2d (See supra, 69 210-212.) The under will was drafted are these: circumstances which the of Newman’s birth. Mitchell and Newman’s mother were married at the time divorced, lived his his Newman with Mitchell for four before parents years remarried, mother and he was his A testator adopted by stepfather. the birth of the first child would be aware of Lathrop’s position ordinarily wife, to her are and cele- bom brother and his for such occasions joyous did brated events in our There are no facts suggesting Lathrop society. Likewise, testator ordinary not know of Newman’s birth and existence. the as his brother’s son to think of her would continue in Lathrop’s position It would divorced. and his wife were even after her brother child and issue childless or her brother as a testator to describe most unusual for such his child. Nor the mother of because he had divorced without issue simply childless, denied that or have said her brother would such a testator child, ex-wife remarried once her brother’s was her brother’s Newman in Lath- The testator her brother’s child. typical the new husband her brother’s to think of Newman as would have continued rop’s position issue; not. Accordingly, did nothing suggests Lathrop child intention, will do not show any making circumstances surrounding intention,” the ordinary meanings “clear Lathrop reject much less a (See Prob. some other sense. and “children” in favor of the terms “issue” 106; Russell, 210-212.) Code, former § above, is Mitchell’s I that Newman reasons set forth conclude For the income. I also to a share of the trust’s under the will and is entitled “issue” when it is distributed is to share in the conclude that Newman entitled corpus one of the “children” of Lathrop’s siblings. III is not one of that Newman contrary The concludes to majority under former father Mitchell because “issue” or “children” of his natural could not of intestate succession Newman 257 and the other laws section relatives of Mitchell Mitchell from and other have inherited through for it wrong, The majority’s approach after his stepfather. adoption for using that the has established conditions ignores statutory Legislature under a a class of beneficiaries intestate succession laws to determine will, as I discuss below. heirs who take the property intestate succession identify laws of a will— will. Decedents who die with
of a decedent who dies without a *21 designate their wills to drafting testators—have also used these laws testator’s commentator has explained class of beneficiaries. One noted statutes to define a class the intestate succession using typical purpose he has . . does so after usually beneficiaries: testator . average “[T]he and he has the beneficiaries of his bounty exhausted his desires as to specific ” Casner, said, Law (5 its American in effect ‘Now let the law take course.’ 22.57, Gifts, (1952) Class Property § who, in centuries, the class persons For testators have to given property will, else inherit from or from someone the absence of a would the testator so by expressly of intestate succession. A can do under the laws testator
149 laws; various also used testators have succession to the intestate referring the class persons to designate such as “heirs” implicitly terms shorthand Richardson (See, James v. e.g., laws. the intestate succession under taking 533, 172, made 1657 353 K.B.) Eng.Rep. 89 (1678 [will 83 Eng.Rep. Davies v. . now living”]; . . body to “heirs males devising property died 872, testator who made Ex.) (1838 Lowndes Eng.Rep. [will law”]; In re Whitcomb and lawful heir at to “right in 1772 leaving property “ 265, ‘said remainder P. providing 86 Cal. 1028] [will ”].) to heirs at law’ shall go my that testators often wish to incorporate by has recognized
Our Legislature to to a class persons the intestate succession laws designate reference this desire To accommodate under a scheme. testamentary receive property whether a testator has to the of determining and to bring certainty process to reference the intestate succession statutes incorporated by implicitly beneficiaries, established a a class of the Legislature long ago designate rule as to which terms were sufficient for that purpose. bright-line included When our Civil Code was first enacted in the Legislature Under former section 1334 as one of the rules for the of wills. interpretation section, ‘heirs,’ ‘relations,’ ‘nearest testamentary disposition “[a] relations,’ or representa- ‘representatives,’ ‘legal representatives,’ ‘personal ‘issue,’ tives,’ ‘descendants,’ or or ‘next of kin’ of ‘nearest’ ‘family,’ any without other words of . . . vests the in those person, qualification, property who would entitled to succeed to the of such person, according property Code, Succession, (Civ. of the Title on in this Code.” provisions Thus, added.) use of the former italics under former section “issue” a will did term in a will to a class of beneficiaries under designate reference the laws of intestate succession. incorporate by 1931, however, drafted, In before will was years Legis- lature enacted a new Probate Code. other Among changes, Legislature revised former section 1334 of the Civil Code and recodified it as section 108). (hereafter the Probate Code former section In its revision and recodification of former section omitted “issue” Legislature construction, that, from the list of terms under our rules of incorporate by reference the laws of intestate succession. “A testamentary disposition ‘heirs,’ ‘relations,’ relations,’ ‘nearest ‘legal representa- ‘representatives,’ tives,’ (or next) ‘nearest of kin’ ‘personal representatives,’ ‘family,’ without other words of . vests the in those person, . . qualification, property *22 who would be entitled to succeed to the such according person, property [i.e., of division II of intestate succession provisions this code (Former 108.) Former section in at the time 108 was effect statutes].” events, those the time of her death. Since will was drafted and at Lathrop’s twice; in as Probate Code it continues substance been recodified it has terms that omit “issue” from the list of continues to section laws of intestate succession. reference the by incorporate deliberate that the Legislature’s this court recognized Nearly years ago, section 108 meant that a the terms listed former omission of “issue” from a class of beneficiaries no of the term “issue” to designate testator’s use As Justice the intestate succession laws. reference longer incorporated [i.e., this section “Before its amendment Roger Traynor explained: the term ‘issue.’ This amendment clearly section also included former 108] was not to control the interpretation that the statute of succession indicates Pierce, 32 Cal.2d (Estate supra, in a will.” the term ‘issue’ as used 269-270, added.) italics have Thus, will in would drafting practitioner competent “issue” did not the word under our statutes construction known that succession, and that if Lathrop of intestate reference the laws incorporate by her siblings would take from the class of those who wished to designate of the would have to use one of intestate succession she under the laws “heirs,” an or else set forth section such as words in former specified under the of those taking of the class consisting express description like section 108 are not applicable, laws. “When statutes intestate succession an if the testator expresses succession only the rules of intestate apply Pierce, will to such rules.” intention in the adopt will; therefore, Here, intention in her 270.) no such Lathrop expressed of the term the interpretation succession do not govern the laws of intestate in this case. “issue” as used by of “issue” conclusion that the
In its reaching contrary succession, intestate to the laws of should be determined by looking in detail I discussed section the statute former majority ignores Instead, citing principle its begins analysis by above. majority that, here. has no application whatever its general validity, construction to be aware public states as follows: “A testator presumed majority a will at the terms used in definitions of the reflected in the statutory policy be followed intend that those definitions the will is executed and to time will. This in the unless intent is expressed construction of the will a contrary will because drafted the when an has attorney is strongest presumption law, the skilled in the been drawn one an instrument has ‘[w]here term of that the legal is an indication and technical terms legal presence with its used, in accordance is to be accepted, and therefore art has been ” ante, at p. (Maj. opn., definition. legal [Citations.]’ *23 no statutory because there is applicable is irrelevant here This principle section it not a term of art. Former of the term “issue” and is legal definition children on which statute addressing adopted the intestate succession relies, does not uses the term “issue” and purport nowhere the majority it, Former to exclude children.1 define much less define it adopted-out when there who takers of the decedent’s section 257 establishes are property addition, will, term is used in a will. In no not who are “issue” when that earlier, 108 was revised to delete as I former section expressly explained the laws of intestate from the list of terms it defined as incorporating “issue" succession, intent that “issue” not defined by showing Legislature’s Pierce, (Estate succession statutes. supra, reference to the intestate 265, 269-270.) Cal.2d made her will is “issue” a term of art that at the time Lathrop Nor legal at the time of her death had a settled technical legal meaning excluding Pierce, in Estate supra, children. This court noted similarly adopted-out 265, 270, 32 Cal.2d that our cases and “do not to prescribe statutes purport used in wills or a standard for the . . . ‘lawful issue’ as meaning term[] instruments, other and are therefore not in the controlling interpreta- private Casner, (See tion of wills or other also 5 American instruments.” private ‘heirs,’ Gifts, Law of Class 22.2 at words Property, supra, p. [“The kin’ different ‘heirs ‘next of and the like are body,’ fundamentally ‘children,’ ‘issue,’ etc., in from the words are ‘grandchildren,’ they technical words that have no of a statute on the meaning today independently intestate succession of property.”].) defined with
The rests its conclusion that “issue” should be majority reference to the former section 257 on a intestate succession provisions court, decision of this Estate Heard Cal.2d 514 P.2d 637]. Heard, In a testator’s named beneficiaries her son or trust testamentary Heard, 514, 516.) the latter’s “lawful issue.” died; whether the son a child and then Heard was adopted question (Id. at of “lawful issue” included both natural and children. adopted 517.) This court concluded that the of adoption, social growing acceptance in every under which and natural children were viewed as adoptive equals and which was reflected in the laws and a whole range respect adoption death, 1At the time time of her former section 257 was drafted and at the him, provided: adopted adopted “An of one who has child shall be deemed a descendant child, through adopting parent purposes by, same as a natural for all of succession from or natural parent. adopted the same as a natural An child does not succeed to the estate of a parent relationship by adoption, when the nor does such between them has been severed child, parent adopted natural succeed such nor does such child estate of parent, succeed to the estate of relative of the natural nor does relative of the natural parent succeed to the estate of an child.” *24 152 statutes, the of “lawful issue” understanding had enlarged ordinary
other adoptive not but also parent-child relationships encompass only biological “ ‘fundamental (See [referring id. at the relationships. parent-child child, the of and with all relationship personal social that the concept parent established, of blood to it be may and incident rights independently property ties, ”].) law’ of by operation [adoption] did Heard court to the created the the majority,
Contrary impression does asking, majority of “lawful issue” as the meaning not determine the here, testator under child could have inherited from the whether the adopted set section had the testator the law of intestate succession forth in former Rather, under succes intestate. the Heard court noted that the intestate died (the at all times the will sion laws as existed relevant time they executed, death, the time death of the the of testator’s and of the time the son), in could not inherited from testator’s the child have adopted question Heard, (Estate supra, the testator had she died intestate. of because, an This was amendment of section prior inherit but intestate child from an not from the could adopted adoptive parent 378, 384 (1955) 44 Cal.2d relative of an Calhoun adoptive parent. 880].) P.2d the intestate statutes The Heard court nonetheless held that succession not but not “here where we concerned with inheritance were are controlling an in a includes rather with whether the words ‘lawful issue’ used will [sic] Thus, Heard, 514, 522.) the child.” Cal.2d supra, adopted {Estate of within the court that the child in that case was adopted-in Heard concluded “lawful issue” was entitled to receive property term meaning the will under former section 257 and the other intestate under even though (49 laws child could not inherited from the testator. succession have case, 522-523.) intestate at In this I conclude that the similarly Cal.2d pp. control of “issue” “children” succession statutes do not meaning here, Newman, in and that Lathrop’s biological legitimate used brother, even is within those two classes beneficiaries son of Newman, inherit from could not after his though adoption by stepfather, succession under the intestate laws. Heard, Cal.2d There are other reasons as well why above, the I have not As noted does conclusion. support majority’s of adoption Heard was whether social and legal acceptance question issue” to had of the term “lawful encompass expanded case, for there is no basis children as well as children. In this biological the ordinary has contracted the social contending acceptance adoption include those no longer “issue” or “children” so that terms understanding Newman and between existing the biological parent-child relationship Nor, that Heard relied upon encourag- Mitchell. contrast to policy children as every respect, the treatment of natural and ing equals in the is there including testamentary gifts, any public policy making to a child the relatives of a natural from leaving gifts parent precludes *25 out of the in a stepparent adoption. family Moreover, a testator it is in mind that a reason principal important keep laws, them. a will is intestate succession not to advance drafts escape of the distributional scheme A decedent to adhere to the and wishing policies will, law succession but can let the intestate statutes has no need simply Thus, the order take its course. in the absence of a on statutory presumption has of former section a court should not conclude that a testator and the intestate succession statutes as implicitly unspokenly adopted testator’s of distribution unless there is evidence that the testator plan Pierce, (Estate intended to do so. supra, [“When statutes like section 108 are not the rules of intestate succession applicable, if the testator an will to such only intention apply expresses adopt Code, rules.”]; see also Prob. former 106 us to terms in [requiring interpret a will in their sense unless testator has manifested a “clear inten ordinary sense].) tion” to use them in another Here there is none.
With
to the two Court of
decisions that the
relies
respect
Appeal
majority
on,
force,
those decisions have little
for in
that the
persuasive
concluding
“issue”
determined
the intestate succession laws
each
they
ignore
of former section 108 and this
completely
contrary teachings
Pierce,
court’s decision in
Estate
Conclusion drafted, At the time the will of the testator this case was testators who wished to Probate Code former section rules of incorporate 257’s succession children had a excluding adopted-out avenue for so. had ready doing They to use one of the only following terms to define a class statutorily designated heirs, relations, relations, of beneficiaries: nearest legal representatives, (or next) nearest of kin. representatives, personal representatives, family, (Former section The testator here did not do so. Nor is there any indication in the will or its circumstances that the testator surrounding to mean some- terms “issue” and “children” to use the
otherwise intended meanings. than their ordinary other thing “issue” and “children” of the words the ordinary meaning
Accordingly, into like Newman who are bom children encompass Those meanings govern. ends, who, later a by steppar- are after marriage a marriage of their ent, progeny such children remain for even after adoption biological parents. above, of the Court reverse the reasons stated I would judgment
For the with this consistent opinion. remand for further proceedings Appeal