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District Court of Appeal, Second District, Division 2, California.


Civ. 15960.

Decided: November 20, 1947

Warner, Peracca & Magana, of Los Angeles, Wagener & Brailsford, of Oakland, and James O. Warner, of Los Angeles, for appellant Helen Pierce Sontheimer. Henry N. Cowan, of Los Angeles, for appellants Mitta Pierce Forni, Frances Pierce Claudius, Lloyd Pierce, Marie Pierce Murphy, Thelma Pierce Atkinson, Grace P. Holland, Gilbert Holland, and Elliot Holland. W. C. Shelton and George W. Burch, Jr., both of Los Angeles, for appellants Edna Dyer Pierce, Harry R. Oakley, and Alfred A. Oakley. Bailey & Poe, Rufus Bailey, and Carl N. Huff, all of Los Angeles, for respondent Marjorie A. Pierce, guardian ad litem of Iola Ann Pierce and Delores Amelia Pierce.

The question for decision is whether a bequest to ‘lawful issue’ in a testamentary trust excludes adopted children.

By his holographic will of March 1, 1933, Edwin Pierce, a childless man, created a trust whereby to dispose of his entire estate. It provided first for an annuity payable to his widow, Edna. The balance of the net income was to be divided into ten equal shares and distributed annually to the four children of his brother, William A. Pierce, and to the two children of his deceased niece, Mary Oakley. Harry A. Pierce was one of the designated annuitants. The passages in the will requiring construction are as follows:

(1) ‘Should any of the annuitants, children or grandchildren of my late brother, W. A. Pierce, die before the final distribution of my estate, his or her annuity shall be distributed in equal shares to his or her children (lawful issue), until final distribution.

(2) ‘At the death of the last of the annuitants. Edna Dyer Pierce, William J. Pierce, Grace P. Holland, Chas. A. Pierce and Harry A. Pierce, it is my will that my estate be liquidated and distributed in equal shares, to and among the surviving grandchildren of my late brother William A. Pierce, said grandchildren being the lawful issue, of the children of my late brother William A. Pierce.’

Edwin, the trustor, died in 1935; Harry, the adoptive father, deceased ten years later. In 1940 Harry and his wife Marjorie adopted Iola Ann Pierce, born December 2, 1928, and in 1944 they adopted Delores Amelia Pierce, born December 15, 1929. Upon the decease of Harry, Marjorie as guardian ad litem of the adopted girls petitioned the court to declare them to be beneficiaries of two-fifths interest in the trust, as coheirs of their father. Upon a trial of the issue created by the ‘responses' to the petition of Marjorie the court held that the two girls are beneficiaries under the testamentary trust and ‘are entitled to receive the share of the net income of the trust estate formerly paid to Harry A. Pierce, to wit, one fifth of such net income remaining after payment of the annuity to Edna Dyer Pierce until final distribution of the trust estate.’

The three propositions of appellants asserted as grounds for reversal may be embodied in the one succinct statement, to wit: The term ‘lawful issue’ when used in a will refers to heirs of the body of the person designated and not to the adopted children of such person.

In making such contention they attempt to establish that in the case of a will or trust it is the intent of the testator that governs. However, appellants were predestined to disappointment by virtue of statutory law. ‘An adopted child succeeds to the estate of one who has adopted him, the same as a natural child.’ Probate Code, sec. 257; Civil Code, sec. 228. The necessary effect of such statutes is to establish the legal relation of parent and child ‘with all the incidents and consequences of that relation, including the right of the child to inherit as a child from the adopting parent * * *,’ otherwise it would not have all the rights of the legal relation of parent and child. In re Darling, 173 Cal. 221, 223, 159 P. 606; In re Estate of Winchester, 140 Cal. 468, 469, 74 P. 10. The adopted child becomes the issue of its adoptive parent and a natural child with respect to his right to inherit. In re Estate of Moore, 7 Cal.App.2d 722, 725, 47 P.2d 533, 48 P.2d 28; In re Estate of Esposito, 57 Cal.App.2d 859, 862, 135 P.2d 167. The phrase ‘lawful issue’ and the word ‘children’ are not to be restricted to their common-law meaning. ‘Children’ relates to status and includes all those upon whom has been conferred the capacity of inheritance. Wolf v. Gall, 32 Cal.App. 286, 287, 295, 163 P. 346, 350.

Such holdings arise out of the paramountcy of the legislative power in fixing the legal status of adopted children and their new parents and out of the absolute control by the lawmakers of the manner in which property shall descend. In re Estate of Moore, supra; In re Estate of Hill, 179 Cal. 683, 688, 178 P. 710. By virtue of the supremacy of such statutes its technical meaning must be affixed to the phrase ‘lawful issue’ in the absence of qualifying words. Dickey v. Walrond, 200 Cal. 335, 340, 253 P. 706; In re Estate of Watts, 179 Cal. 20, 22, 175 P. 415. Since there are no such modifying words in the will of Edwin Pierce as would defeat the right of the adopted girls as the ‘lawful issue’ of Harry A. Pierce, the court below correctly ruled that they are entitled to receive the share of the income from the trust estate that was paid to their father in his lifetime.

Because the meaning of the term lawful issue is determined by legislative enactment, under the law of some states an adopted child does not possess the same right of inheritance as the other children of a decedent. It is because of the statutory law in such states or the lack of it that the decisions of their courts deny adopted children the same rights as are accorded to ‘issue,’ ‘lawful issue,’ or ‘children’ in California. See New York Life Insurance and Trust Company v. Viele, 161 N.Y. 11, 55 N.E. 311, 76 Am.St.Rep. 238; In re Cuddeback's Estate, 174 Misc. 322, 20 N.Y.S.2d 862, 864; Wyeth v. Merchant, D.C.Mo., 34 F.Supp. 785; In re Wait's Estate, Sur., 42 N.Y.S.2d 735; Miller v. Wick, 311 Ill. 269, 142 N.E. 490, 30 A.L.R. 1407; Pross v. Anson, Sup., 58 N.Y.S.2d 26; Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 621. In some of these decisions it is pointed out that the statute governing the rights of adopted children differs from the statutes of those states where such children are ‘lawful issue,’ as in Rhode Island, Minnesota and California. In re Cuddeback's Estate, supra; Wyeth v. Merchant, supra; In re Olney, 27 R.I. 495, 63 A. 956; In re Holden's Trust, 207 Minn. 211, 291 N.W. 104. The New York statutes exhibit the contrast. Decedent's Estate Law, Article 3, sec. 83[14], and Domestic Relations Law, Art. 7, sec. 115 of New York.* Those laws disclose a marked difference from section 257 of the Probate Code of California whereby an adopted child succeeds to the estate of the adoptive parent ‘the same as a natural child.’ Inasmuch as California wills are to be interpreted according to the laws of this state, Probate Code, sec. 100, the decisions of our appellate courts must be looked to for guidance in the construction of the will of Edwin Pierce.

Appellants' argument that a presumption arises from such language as was used by the testator herein that adopted children are not included within the phrase ‘lawful issue’ is answered by the cited statutes and decisions of this state. Presumptions do not arise contrary to express statutes. But they contend that from those sections of the will first quoted above the trustor ‘intended to confine his bounty to grandchildren of his brother.’ The word grandchildren appears nowhere in the will. The testator's evident purpose in composing the quoted passages was to dispose of the income and the corpus of his estate upon the decease of one annuitant and upon the passing of the ‘last of the annuitants.’ Had he been solicitous of avoiding the transfer or payment of any portion of the trust to an adopted child of a nephew, words were available for such purpose. He chose words that have definite and established meanings which cannot be voided now.

In attempting to establish their claim that the intent of the testator governs in the construction of his will appellants introduced into evidence the testimony of the widow of the testator as to the statements of her husband concerning the adoption of Iola Ann. The will was written on March 1, 1933. The conversation had occurred more than two years prior to Edwin's decease and thirteen years before the trial. Over the objection of respondent Mrs. Pierce testified that ‘a long time ago’ when Charles Pierce and his wife were present her husband, on being advised by Charles that ‘Harry was going to adopt the title Iola child,’ said: ‘If God spares my life until tomorrow, and I can get down to my bank, I am going to disinherit Harry.’ Also she testified that he subsequently stated he had done so, but thereafter she told Harry of her husband's threat and he and his wife called and told Edwin that they would not adopt Iola. Expressing his belief of Harry's promise Edwin destroyed the will by which he had disinherited Harry and the witness had preserved it.

Such testimony was inadmissible for two reasons: (1) It was too remote. It is the rule that statements of a grantor or testator offered to show the state of his mind at the time of executing the document under consideration should be ‘sufficiently near in point of time that the testimony may be of value in determining the question directly in issue.’ Piercy v. Piercy, 18 Cal.App. 751, 762, 124 P. 561, 565. When a testator has comprehended the nature of his act and thereupon signed an instrument, inquiry into his intent must cease in the absence of fraud or other equitable grounds for relief. See Wigmore's 3rd Edition, sec. 2421. In Re Estate of Pagel, 52 Cal.App.2d 38, 125 P.2d 853, it was held that testimony as to the declarations of decedent made two days prior to the execution of his will and 33 days prior thereto were inadmissible to prove testamentary intent. Therefore, since no claim is made herein that the testator's will was obtained by the exercise of inequitable influences, his declaration with reference to his intent was inadmissible since it was in the interest of the testator as well as of the witness and was not uttered in the presence of Harry against whom it was offered. Steinberger v. Young, 175 Cal. 81, 165 P. 432; Barcroft v. Livacich, 35 Cal.App.2d 710, 719, 96 P.2d 951; Belser v. American Trust Company, 125 Cal.App. 344, 352, 13 P.2d 951.

(2) The second reason for rejecting the testimony of the testator's widow is that it violated the cardinal rule forbidding the admission of parol testimony to vary the terms of a writing. The testator's intention is to be ascertained from the words of the will itself. Probate Code, secs. 101, 105; In re Estate of Soulie, 72 Cal.App.2d 332, 335, 164 P.2d 565; In re Estate of Owens, 62 Cal.App.2d 772, 774, 145 P.2d 376; In re Estate of Schaetzel, 44 Cal.App.2d 320, 324, 112 P.2d 324; Gore v. Bingaman, 29 Cal.App.2d 460, 473, 85 P.2d 172; In re Estate of Bourn, 25 Cal.App.2d 590, 602, 78 P.2d 193. The consensus of all the authorities bearing upon the subject is that where from the very words of a will the intent is clear and there is no latent ambiguity, such intent must be followed as therein indicated, and proof that the testator had other desires is inadmissible. In re Estate of Willson, 171 Cal. 449, 456, 153 P. 927, and Gore v. Bingaman, supra. There being no ambiguity in the will of Edwin Pierce, proof other than the document itself was incompetent for any purpose.

The judgment is affirmed.


FOOTNOTE.  Article 3, section 83, reads: ‘The right of an adopted child to take a share of the estate and the right of succession to the estate of an adopted child shall continue as provided in the domestic relations law.’Article 7, sec. 115, reads: ‘The foster parents or parent and the foster child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from each other.’

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.