Lead Opinion
The trustee of an inter vivos trust brought this action in the Probate and Family Court Department for Suffolk County, seeking a declaratory judgment that a child bom out of wedlock to the donor’s granddaughter is “issue” of the donor’s children for purposes of the trust. The nonmarital child remains illegitimate because her paternity has never been acknowledged and her parents have never intermarried.
The parties named as defendants include all the living beneficiaries of the trust. None has answered, although all have been served with notice. A guardian ad litem (guardian) was appointed to represent the interests of the donor’s minor issue, and he has opposed the relief prayed for by the trustee. A guardian ad litem also was appointed to represent the nonmarital child; he has adopted the arguments advanced by the trustee. The parties signed a statement of agreed facts, and the Probate Court judge granted their joint motion pursuant to Mass. R. Civ. P. 64,
The donor died on August 5, 1969. She was survived by one son and two daughters, one of whom still survives, and nine grandchildren, all of whom survive.
Distributions of principal to the nonmarital child are sought to provide for her support and education. Such distributions were made in the past on joint requests from the child’s mother and grandmother, the trustees then being unaware of the child’s nonmarital status.
The trustee advances several alternative arguments in support of the declaration he seeks.
In these circumstances, the trustee argues that, absent extrinsic evidence establishing that the donor ascribed a special meaning to the term “issue,” her intent “must have been to use [it] in its usual and customary meaning as generally used, meaning biological issue, regardless of legitimacy, ‘progeny’ or ‘offspring,’” citing Webster’s New Int’l Dictionary (2d ed. 1947). While we take judicial notice that the dictionary meaning of “issue” does not exclude nonmarital children, and it did not at the time the donor executed her indenture of trust, we know of no legal authority for the proposition that contemporaneous dictionary meanings must be read into the ambiguous words of trust instruments. Additionally, the statutory law of this Commonwealth is not wholly consistent with the dictionary definition of “issue” which the trustee urges upon us. General Laws c. 4, § 7, Sixteenth (1984 ed.), provides: “‘Issue’, as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor.”
2. Equal protection analysis. The trustee argues that application of the mle of construction stated in Mishou, supra, would violate the rights of the nonmarital child to equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
It is the trustee’s contention that the mle of construction as to a donor’s intent discriminates against nonmarital children because, taken in tandem with G. L. c. 190, § 7 (1984 ed.) (see note 2, supra), it impermissibly excludes from trust participation as “issue” all nonmarital children not expressly included unless their parents have intermarried. We do not view this argument as persuasive. The guarantees of the equal protection clause of the Fourteenth Amendment are directed solely to limiting the actions of government. See Commonwealth v. Hood,
Shelley is inapposite on its facts. In Shelley, the Court had no doubt that State action was involved because it was clear that “but for the active intervention of the state courts, supported by the full panoply of state power, [the black] petitioners would have been free to occupy the properties in question without restraint.” Shelley, supra at 19. State action was found because judicial enforcement of the “private law” of restrictive covenants effectively barred blacks from participation in a significant segment of the housing market. In Mishou, the court reaffirmed a definition for a word whose meaning, as judicial experience repeatedly showed, would remain ambiguous without judicial clarification. Under the court’s ruling, donors and testators enjoyed freedom to use the word “issue” without explication, confident that we would enforce the instrument containing it to exclude nonmarital children. Similarly, donors have been free to modify the word by stating an additional, contrary intent, in which case we have enforced the instrument to honor that intent. When “issue” is used in a legal instrument, with or without explication, it is the donors and testators who act, not this court nor any other arm of the State.
The Mishou decision was handed down almost forty years ago. In the interim, this court does not appear to have reconsidered the utility or propriety of its rule that, absent clear expressions of a contrary intent, the term “issue” must be read to exclude nonmarital descendants. Indeed, the Mishou court itself did not state the principles underlying this rale of construction; rather, it merely treated the applicability of the rale as a closed question in this jurisdiction. Mishou, supra at 634. Nor was the rationale for the rale subjected to judicial scrutiny in any of the decisions relied upon in Mishou. See Mishou, supra at 634-635, citing Green v. Kelley,
All these decisions treat the rale as sound because it was well settled in English and American law. We must turn to a
“[Tjhere seems to be no maxim of [the common] law less questionable than that a bastard is filius nullius .... No doubt the law [barring illegitimates from inheriting as next of kin] was so established on higher principles than the interest of individuals. It was to render odious illicit commerce between the sexes, and to stamp disgrace on the fruits of it; and though the punishment usually falls upon the innocent, yet it was thought wise to prohibit them from tracing their birth to a source which is deemed criminal by law and by religion. It is enough that . . . the authors of this misfortune have the power to repair it by will or by gift; the law will not interpose.” Cooley v. Dewey,4 Pick. 93 , 94 (1827) (Parker, C.J.).
It is questionable whether the attitudes expressed by Chief Justice Parker were representative even of his own era; within two years after Cooley, the Legislature had mitigated the non-marital child’s status as filius nullius by enacting a statute which made such children heirs of their mothers for purposes of intestate succession. See St. 1828, c. 139, codified at G. L. c. 190, § 5 (legislating, as well, a result contrary to the primary holding in Cooley, supra), Monson v. Palmer,
Moreover, while the “source” of nonmarital birth is still deemed criminal in this Commonwealth, see G. L. c. 272, § 14 (1984 ed.) (adultery), and § 18 (1984 ed.) (fornication), “[i]t seems beyond dispute that the statutes defining or punishing [these] crimes . . . have fallen into a very comprehensive desuetude.” Fort v. Fort,
The justice of punishing innocent children for the actions of their parents has long been questioned. Indeed, doubt was expressed in several decisions relied on by the court in Mishou. “Removal of the obstacles to the legitimation of innocent children, who have no responsibility for the circumstances of their birth, and thus ameliorating some of the apparent harshness of the common law, has been the progressive policy of our law as illustrated by statutes and decisions.” Green, supra at 605. See Gritta’s Case,
Thus, if the mle excluding nonmarital children from judicial construction of the word “issue” was not archaic when this court reiterated it in 1947, it has become so. We cannot say that the attitudes underlying that mle, as expressed in Cooley, supra, are so widely held in this Commonwealth today as to warrant our imputation of them to donors and testators who use the word “issue” without explication. Rather, we think that the following sentiment, voiced by the Supreme Court of the United States almost fifteen years ago, comes much nearer to the mark:
“The status of illegitimacy has expressed through the ages society’s condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent.” (Footnote omitted.) Weber v. Aetna Casualty & Sur. Co.,406 U.S. 164 , 175 (1972).
Ours is an era in which logic and compassion have impelled the law toward unburdening children from the stigma and the disadvantages heretofore attendant upon the status of illegitimacy. Consequently, we think it more appropriate henceforth to place the burden of exclusion on those donors who insist on it. Therefore, we overrule so much of Mishou as depends
A crucial question remains concerning the applicability of the rule we announce today to the parties at bar. “[T]he general rule is in favor of retroactive application of a change in decisional law, . . . [but] [primarily because of concern for litigants and others who have relied on existing precedents, judicial changes in Massachusetts contract and property law have been given only prospective effect.” (Citations omitted.) Payton v. Abbott Labs,
The case is remanded to the Probate and Family Court for Suffolk County for entry of a declaration that, under the law applicable when the trust instrument was executed, the unexplained word “issue” is presumed to encompass only lawful lineal descendants of the donor.
So ordered.
Notes
The statute governing legitimacy in this Commonwealth is G. L. c. 190, §7 (1984 ed.), which reads in relevant part: “An illegitimate person whose parents have intermarried and whose father has acknowledged him as his child or has been adjudged his father under chapter two hundred and seventy-three shall be deemed legitimate . . . .”
The statement of agreed facts was filed on October 9, 1985. The status of the trust’s beneficiaries as “surviving” or “deceased” was current as of that date.
The grandmother of the nonmarital child died on March 26, 1985. At that time, the child’s mother succeeded (together with each of her siblings) to a one-twelfth share of the income from the trust.
The trustee raised several of these arguments in an earlier case involving other parties, but we reach these questions for the first time. See Powers v. Steele,
The trustee argues that G. L. c. 190, § 5 (1984 ed.), must be construed to create equal status for persons bom out of wedlock where, as here, the nonmarital child claims through a female beneficiary. In pertinent part, § 5 reads as follows: “An illegitimate person is heir of his mother and of any person from whom his mother might have inherited, if living . . . .” It is undisputed that the trust at issue here involves a gift, not an inheritance. The nonmarital child is not her mother’s heir until the mother’s death. First Agricultural Nat’l Bank v. Shea,
In relevant part, the Fourteenth Amendment reads as follows: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
But see Estate of Dulles,
We note that the trustee’s equal protection argument relies primarily on Trimble v. Gordon, supra, which invalidated an intestacy statute, not a judicially created rule. While we do not deny that rules applying to what has traditionally been thought of as the area of “private law” may trench upon equal protection concerns, it is instructive to note that no decision by the Supreme Court of the United States ever has. invalidated a common law rule of construction on the ground that it violated the equal protection clause by discriminating impermissibly against nonmarital children. The liberalizing decisions handed down by the Supreme Court in recent years have all been directed at statutory discriminations. See Reed v. Campbell,
The trustee concedes that the Equal Rights Amendment to the Constitution of the Commonwealth does not apply to this case. See note 11, infra. Nonetheless, he claims that “[t]he common law disabilities of birth outside of wedlock require mitigation under Art. 1 of the Constitution of the Commonwealth,” due to its provision that all people “are bom free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right ... of acquiring, possessing and protecting property . . . .” It is not clear from the trustee’s brief, however, whether he asserts that art. 1 is applicable in the absence of State action. No authority is cited in support of that proposition. Compare Batchelder v. Allied Stores Int'l, Inc.,
The trustee argues that reversal of the Mishou rule is required by our holding in Lowell v. Kowalski,
A representative list of such statutes was compiled in Matter of Hoffman,
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In Mishou, the court stated: “If this rule of construction is deemed too harsh, the remedy is not to be found in sudden and unheralded changes by judicial decision in the meanings of words which have long been established and accepted and in reliance upon which wills have been drafted and settlements of property effected.” Mishou, supra at 636. Now, almost forty years later, we do not think the change we announce is sudden or unheralded in any way. As will become clear, infra, our limitation of the new rule to prospective application effectively obviates the Mishou court’s concern for the reliance interests of donors and testators now deceased.
In Mishou, it was observed that the traditional rule of construction was contrary to the Restatement of Property §§ 265, 286, and 292 (1940). Mishou, supra at 636. While abandoning the traditional rule, we do not adopt these sections of the Restatement. The rule we do adopt is substantially in accord with § 292, but these sections of the Restatement treat questions not reached here — for example, whether the term “children” is to be construed as including or excluding nonmarital descendants. See, e.g., §§ 286 and 292 comment a.
We note that the dissent relies primarily on authorities from other jurisdictions, and also that many of those authorities do not involve property law, where reliance on existing precedent plays a significant role in settling the rights of parties. Additionally, we have a well established body of law on the issue of retroactive application of a new rule of civil law.
Concurrence Opinion
(concurring in part and dissenting in part, with whom Hennessey, C.J., and Nolan, J., join). I join in the court’s decision to announce the new rule of construction which defines “issue” to include all biological descendants regardless of the marital status of the parents, overruling the rule of construction of Fiduciary Trust Co. v. Mishou,
First, by merely announcing the new rule without applying it, the court’s action amounts to no more than dictum. Myers v. Drozda,
Second, and more importantly, prospective overruling results in excluding the particular plaintiff and has the potential to remove any incentive to bring challenges to existing precedent because the appellant is deprived of the benefit for the work and expense involved in challenging the old rule, which is admittedly erroneous. See Molitor, supra at 28; Myers, supra at 187; Kojis, supra at 373. To encourage parties in future cases to raise issues which reform and rid the law of antiquated legal doctrines, they should be given the benefit of the new rule. Schaefer, supra.
Courts in other States have applied a new rule or a change in the law to the plaintiff challenging the rule. See, e.g., Nga Li v. Yellow Cab Co.,
The court’s primary concern in declining to apply the rule announced today to the parties here appears to be the reliance interest of the Bar.
The court relies on Sullivan, supra, to conclude that the new rule of construction is not determinative of this case. In Sullivan,
Unlike the situation in Sullivan, the intent of this donor in 1959 when she established this trust is far from clear. In fact, it is likely that the donor did not have any “intention at all with respect to the question facing us in this case.”
Similarly, the Wisconsin court, in carving out an exception to the traditional rule of construction if the illegitimate child is a member of the family circle, noted that once statutes and legal presumption are put aside, there is nothing in the record to indicate that the donor would not have intended to include this particular child.
By giving relief in this case, the court does not harm the reliance interest of the Bar.
It is hard to understand why the Bar’s reliance should come before the interests of the child, and the reason articulated by the court does not compel such an unjust result. In fact, the court, by not granting relief in this case removes the incentive of the Bar to change rules which are no longer useful or relevant. The potential negative ramifications which flow from the court’s decision today on the incentive of attorneys to challenge outmoded legal doctrine may be avoided by granting relief in this case. Although the court criticizes the injustice of the law’s treatment of nonmarital children in the past, claiming that “[o]urs is an era in which logic and compassion” dictate that nonmarital children should no longer be stigmatized, ante, it imposes punitive treatment on this particular nonmarital child. The cruel irony of the court’s decision is that not only does this child not receive the benefit of the change she brought about in the law, but, prior to this decision, she was receiving payment from the trust and now, as a result of the decision, she can no longer receive these payments. I respectfully dissent on the failure of the court to apply the new rule to this case.
There is no constitutional problem in applying the new rule to the child in this case. Great N. Ry. v. Sunburst Oil & Ref. Co.,
Many courts apply the new rule to the parties without extended discussions. See, e.g., In re Estate of Mertes,
In Payton v. Abbott Labs,
Uneven treatment arguably results if only the litigant is benefited by the new mle and similarly situated individuals are not benefited, having to proceed instead under the old rule. But, as the Supreme Court stated, “the fact that the parties involved are chance beneficiaries [is] an insignificant cost for adherence to sound principles of decision-making.” Stovall v. Denno,
There is some indication that this reliance interest has been overemphasized by courts. One commentator quotes Justice Cardozo as saying that “[m]y impression is that the instances of honest reliance and genuine disappointment are rarer than they are commonly supposed to be by those who exalt the virtues of stability and certainty.” Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L.J. 907, 946 n.194 (1962), quoting Cardozo, Address Before tire New York State Bar Association, 55 Rep. N.Y. State Bar Ass’n 263, 295 (Jan. 22, 1932). See Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1, 28-29 (1960).
While the attorney perhaps understood the legal significance of the terms he selected, it is not clear on" this record that the donor had any such understanding.
Moreover, all of the living beneficiaries of this trust have been notified of this action, and the record before us indicates that those beneficiaries have not objected to. the inclusion of this child as a beneficiary.
It is of no consequence that this suit was initiated by the trustee instead of the child. As has happened in the past, the trustee may bring an action to resolve a question concerning the distribution of a trust. See Boston Safe Deposit & Trust Co. v. Fleming,
In fact, the court itself questions whether the attitudes expressed in Cooley v. Dewey,