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

Estate of Jane L. STANFORD, Deceased. The BOARD OF TRUSTEES OF the LELAND STANFORD JUNIOR UNIVERSITY and Ruth C. Barton, Appellants, v. Almee G. REYNOLDS, Minnle Devereaux Bond Rochester and Aimes C. Muniz, Respondents.*

Civ. 17187.

Decided: January 25, 1957

James D. Adams, Albert J. Moorman, McCutchon, Thomas, Matthew, Griffiths & Greene, San Francisco, for appellant, The Bd. of Trustees of the Leland Stanford Junior University. Dudley Robinson, Caryl Warner, Los Angeles, for appellant, Ruth Barton. John L. Bradley, Sam J. Whiting, Jr., Crimmins, Kent, Draper & Bradley, San Francisco, for respondents, Aimee G. Reynolds and Minnie Devereaux Bond, Rochester. Schwartz & Alschuler, Beverly Hills, for respondent, Aimee C. Muniz.

This is an appeal from a judgment of the Superior Court in and for the County of Santa Clara dated October 28, 1955, decreeding that all the property in the hands of the trustee, be distributed to respondents Aimee G. Reynolds, Minnie Devereaux Bond Rochester and Aimee Christine Muniz in equal shares. Appellants Ruth Barton and The Board of Trustees of The Leland Stanford Junior University, whose interests are opposed, have filed separate briefs on appeal.

The trial court held that the property in the hands of the trustee should be distributed to respondents as the adopted children of Mrs. Amy Hansen, a niece of testatrix, Mrs. Jane Stanford, declaring them to be members of the class provided for in a provision of the will for the ‘child or children’ of Mrs. Hansen. It denied the claim of Mrs. Barton, who had been designated by Walter Hansen, deceased, a son of Amy Hansen, as his sole heir in his will. The trial court determined that the provision in the will for the ‘child or children’ of Mrs. Hansen did not describe an interest that vested at the death of testatrix, but was contingent upon the child's survival of his mother. Hence, the gift was held to vest in respondents, the surviving adopted children of Amy Hansen. The court denied the claim of The Trustees of Leland Stanford Junior University, who had contended that the University took as residuary legatee under the will, the class gift having lapsed. The Trustees had argued that testatrix had not intended to include adopted children in the classification ‘child or children’ of Amy Hansen, and that the adoption order of the New York Court was procured in a special type of administrative rather than judicial proceeding, hence could be collaterally attacked.

Mrs. Jane Latherop Stanford, the widow of Leland Stanford, Sr., died on February 28, 1905. Her will was dated July 28, 1903. On August 10, 1904, she executed a short codicil thereto, directing that certain jewels and a private car be sold by her executors and the proceeds turned over to the Trustees of Standford University.

The opening paragraphs of the will, the portion of that document providing for the gifts giving rise to this controversy, read as follows:

‘I give and bequeath to the Union Trust Company of San Francisco, a corporation organized and existing under the laws of the State of California, the sum of Two Million ($2,000,000) Dollars, to have and to hold the same in trust for the following uses and purposes, that is to say:

‘a. I authorize, empower and direct said Trustee to invest said sum of Two Million ($2,000,000.) Dollars in first class bonds, or other securities, as it may deem best, and to pay over, at regular intervals, the net income arising from one million dollars thereof to my brother Ariel Lathrop of Albany, New York for and during the term of his natural life, and upon his death, (as he has no children or descendants) this trust shall cease and determine as to one-half of said trust property, that is to say, as to One Million dollars thereof, and the said sum or the property in which it may be invested shall belong to and be delivered to his relatives as follows, viz.: One-half thereof to his brother Charles Gardner Lathrop, and the other one-half thereof to the descendants of his deceased brother Daniel Shields Lathrop in the proportions of one-third to the daughter Jennie L. Lawton, one-third to his daughter Amy Gardner Hansen, and the remaining one-third in equal shares to Daniel S. Gunning and Amy L. Gunning, the children of Christine L. Gunning, the deceased daughter of Daniel Shields Lathrop, deceased.

‘b. To pay over at regular intervals to my niece, the said Jennie L. Lawton, the full one-third of the net income arising from one million dollars, the other one-half of said trust fund, for and during the term of her natural life, and upon her death this trust shall cease and determine as to one-third of said one million dollars, and the said one-third of said one million dollars shall belong to and be delivered to the child or childen of said Jennie L. Lawton.

‘c. To pay over at regular intervals to my niece the said Amy L. Hansen, the full one-third of the net income arising from said one million dollars, being one-half of said trust fund, for and during the term of her natural life, and upon her death this trust shall cease and determine as to one-third of said one million dollars and the said one-third of said one million dollars shall belong to and be delivered to the child or children of said Amy L. Hansen.

‘d. To pay over, one-half to each, at regular intervals, to said Daniel S. Gunning and Amy L. Gunning, the children of my deceased niece Christine L. Gunning, one-third of the net income arising from said one million dollars, the said one-half of said trust property, until such time as the younger, of the two shall reach the age of twenty-five years, at which time this trust shall cease and determine as to one-third of said one million dollars, the one-half of said trust property, and the said one-third shall belong to and be delivered to said Daniel S. and Amy L. Gunning, absolutely and in their own right, share and share alike, and free from all trust; provided, however, that if either should die before the younger attains the age of twenty-five years, this trust shall cease and determine as to one-half of said one-third of a million dollars and that proportion of the trust property shall belong to and be delivered to the children of the one so dying, or, if there be no such children, then to the other; and the trust shall thereafter continue as to the other one-half of said one-third of a million dollars until the survivor reaches the age of twenty-five years, at which time the trust as to the remainder of said one-third of a million dollars shall cease and determine and the property shall belong to and be delivered to said survivor, but if such survivor dies before attaining such age of twenty-five years this trust shall then cease and determine and the trust property shall belong to and be delivered to his or her children, or if there be none such, then to his or her heirs at law.’

Following these provisions was a gift of $1,000,000 to the brother of testatrix, Charles Lathrop. Numerous bequests ranging between $5,000 and $15,000 were made to devoted friends, servants and charities. The residuary bequest was made to Stanford University in Paragraph XXII, and Paragraph XXV of the Will declared that testatrix had made what she considered the wisest and most just disposition of the large estate committed to her husband and herself, ‘and the disposition most in accordance with the cherished wishes long entertained by my husband and myself, and I shall greatly deplore any attempt to disturb it; and if any devisee or legatee under the above written Will, or any person who, if I died intestate, would be entitled to any part of my estate, should either directly or indirectly attempt to oppose or set aside the probate of this Will, or to impair, invalidate or set aside its provisions, or to set aside or avoid, or to have declared void, null or ineffectual any transfer or grant made or atempted to be made by my husband or myself to said Trustees of said University, then and in that case, I give and bequeath to such person or persons the sum of One Hundred ($100.) Dollars * * * and all the rest of the interest that would otherwise have gone to such person or persons by devise or inheritance shall pass under the residuary clause of the said Will.’

On April 6, 1906, a Decree of Partial Distribution was entered ordering ‘that there be distributed to the respective legatees upon their respective legacies * * * the following respective amounts, namely: ‘To the Union Trust Company * * * $1,900,000 in trust and upon the trusts provided for by said last will * * * said trusts being expressed in said will as follows, * * *’' The decree then quoted directly from the will the portion hereinbefore quoted, that is the paragraph dealing with the $2,000,000 gift in trust to the Union Trust Company, and paragraphs a, b, c, d.

On May 1, 1908, the Superior Court entered the Decree of Settlement of Third and Final Account and of Final Distribution. The decree recited that all legatees under the will had been paid their legacies in full, with the exception of the Board of Trustees of Stanford University, the residuary legatee, and ordered that all the rest, residue and remainder of the estate known or not then known or discovered be delivered to the trustees of said University.

Jennie L. Lawton, niece of Mrs. Stanford, who was given a life income from one-third of one million dollars by Paragraph I b of the will, had one child, Daniel L. Lawton, who predeceased her on November 4, 1926, bequeathing his interest in the Stanford estate to his mother. On October 7, 1927, the Superior Court of Santa Clara County adjudged and decreed that the trust terminated as to one-third of the one-half of the trust estate on the death of Jennie Lawton and ordered said sums delivered to the executor of her estate. The opinion of the trial court states that the interest of Daniel Lawton vested upon the death of testatrix. Stanford University had claimed the aforesaid share of the estate as residuary legatee, and appealed the decision to the Supreme Court. On May 5, 1928, the remittitur of that court issued, reciting that the parties had filed their stipulation that the appeal be dismissed, and ordering that the appeal be dismissed with costs to respondents.

Amy L. Hansen had but one child, Walter L. Hansen, who was twelve years of age at the time when Mrs. Stanford made her will. He died in 1918 at the age of twenty-seven making appellant Ruth Barton the sole heir to his estate.

On February 23, 1924, a year after the probate of Walter's estate, his mother, Amy L. Hansen, had an adoption decree entered in the State of New York, adopting as her own children, her niece, Mrs. Aimee Gunning Reynolds, and the two minor children of Mrs. Reynolds, Aimee and Minnie Rochester. The petition shows that Mrs. Reynolds was then thirty-five years of age, a resident of Pennsylvania where she resided with the two minor children whose father was Mrs. Reynolds' former husband, Richmond Rochester, Jr. The Final Judgment of Divorce attached as an exhibit to the petition, gave custody of the children to the mother, and allowed her at any time on eight days notice to apply for an order against the children's father for their support. Nothing in the adoption record shows that any notice of this proceeding was given to the father of the minor children. The order of adoption recites that an instrument in writing had been presented to the court by which Aimee Lathrop Hansen agreed to adopt Mrs. Reynold and her children, that they had appeared before the court and the court had examined them and was satisfied that their moral and temporal interests would be promoted by said adoption, and ordered that the adoption ‘be allowed and confirmed and henceforth the said Aimee G. Reynolds, Aimee Christine Rochester and Minnie Devereaux Bond Rochester shall be regarded and treated in all respects as the children of said Aimee Lathrop Hansen.’ The petition, agreement, and order for adoption, are all dated on the same day.

Appeal of Ruth Barton

Appellant Barton contends that the 1906 Decree of Distribution superseded the will and finally determines the rights of the parties. The decree referred to the distribution of the estate as a completed fact. It distributed to the Union Trust Company $1,900,000 ‘in trust and upon the trusts provided for in the last Will of Jane L. Stanford, deceased’, quoting the provisions of said trust directly from subparagraphs a, b, c, and d of Paragraph I of the will. In re Estate of Easter, 24 Cal.2d 191, 194, 148 P.2d 601, 603, holds that ‘The decree supersedes the will and prevails ‘over any provision therein which may be thought insonsistent with the decree’.' And, see, In re Estate of Norris, 78 Cal.App.2d 152, 160, 177 P.2d 299; Rest.Prop. sec. 242. The Decree of Final Ditribution in 1908 declared that all of the legatees under the will had been paid their respective legacies in full. From these decrees appellant concludes that the gift to Walter Hansen unquestionably vested in him at the death of testatrix. It is, of course, settled that the effect of a will is controlled by a decree of distribution when the latter is final. In re Estate of Easter, supra; Keating v. Smith, 154 Cal. 186, 191, 97 P. 300. In the case now before the court, the decree makes the distribution in the exact terms of the will quoting therefrom verbatim. In Manning v. Bank of California, 216 Cal. 629, 637–638, 15 P.2d 746, 750, it is said that ‘Although the decree of distribution supersedes the will as the measure of the rights of the parties, the will is part of the record in a probate proceeding, and, where it is ascertained upon comparison that the decree is a counterpart of the will, without additions or alterations, the decree cannot be given a different or broader interpretation than the will.’ The trial court in the 1906 decree simply decreed a distribution in the terms of the will, making no interpretation of the terms thereof. If the terms of the distributive part of the decree are ambiguous, resort may be had to the will to interpret them. In re Estate of Tynan, 129 Cal.App.2d 364, 366, 276 P.2d 809; In re Estate of Norris, 78 Cal.App.2d 152, 160, 177 P.2d 299. The finding of the trial court herein that decedent intended by sub-paragraph c to make a future gift to a class consisting of the child or children of Amy Hansen who should be living at the time of the death of said Amy Hansen is based entirely on an interpretation of the language used in that portion of the decree and will without the aid of extrinsic evidence. The opinion of the trial court filed herein and made a part of the findings of fact and conclusions of law, demonstrates that the finding was arrived at from the language used which was analyzed in the light of decided cases. It is therefore the duty of the court to interpret the language according to the applicable principles of law without regard to the interpretation made by the trial court. In re Estate of Norris, 78 Cal.App.2d 152, 159, 177 P.2d 299. If, of course, this court cannot determine the meaning found in the language used, then it may resort to any competent parol evidence introduced at the trial.

Numerous authorities are cited by appellant in support of the policy of favoring early vesting of trust remainders. Secs. 28, 143, Prob.Code; Secs. 694, 699, Civ.Code; In re Estate of Riemer, 69 Cal.App.2d 634, 159 P.2d 677; In re Estate of Backesto, 71 Cal.App. 409, 416, 235 P. 670; In re Estate of Rider, 199 Cal. 724, 738, 251 P. 799; Williams v. Williams, 73 Cal. 99, 102, 14 P. 394; Rest.Prop., Sec. 243(b). That such is the policy of the law may be regarded as well settled.

It is urged that the rule of interpretation that where there is no ‘gift over’ in the event of the minor's death, the estate will be presumed to have vested at the time of testator's death, further supports the position of appellant. This rule was clearly stated by this court in Re Estate of Riemer, 69 Cal.App.2d 634, 637, 159 P.2d 677. In the Riemer case the intention to make a present gift, with the time of payment postponed, was clearly indicated. The court stated that the will left no doubt as to that intention, because, the words used were ‘I hereby give, devise and bequeath to my grandson.’ The rule of interpretation, secondarily relied on in the cited case, as appellant Stanford has pointed out, does not change the presumption into a rule of law which applies regardless of the testamentary intent.

Appellant relies on In re Estate of Wallace, 11 Cal.2d 338, 79 P.2d 1094, and states that this case had overruled In re Estate of Blake, 157 Cal. 448, 108 P. 287. We have, however, been unable to find a case overruling the Blake case. In re Estate of Wallace, the final decree of distribution followed closely the provisions of the will creating a trust and providing for payment by the trustee of the net income of the trust property to decedent's widow and two daughters. It provided that ‘Upon the death or remarriage of said widow, the said trust shall terminate and said trustee shall distribute the balance remaining in said trust fund to the two above-named daughters of decedent, in equal proportions, share and share alike’. (Emphasis ours.) [11 Cal.2d 338, 79 P.2d 1095.] One daughter pre-deceased the widow. If the remainders to the daughters were construed as contingent there would result an intestacy as to one-half the trust property. The court applied the rule that a construction favorable to testacy should be made where the language used reasonably admits of such construction. In re Estate of Dunphy, 147 Cal. 95, 99, 81 P. 315. In the present case if a gift lapsed, there would be no question of intestacy, as the residuary legatee would take.

In re Estate of Wallace, the court, relying on the interpretation of the words ‘shall districute’ in Re Estate of Dunphy, supra, construed said words to mean simply delivery to the daughters of possession of the trust res the ownership of which had previously vested in them. The words employed in the instant case, ‘shall belong to ‘shall distribute’ in Re Estate of Dunphy, Re Estate of Wallace, but appellant notes that the court there quoted and relied on the Restatement of the Law of Real Property (sec. 157, Comment h, p. 548) declaring that ‘when an otherwise effective conveyance of either land or a thing other than land creates one or more prior interests, the maximum duration of which is measured by lives, or by years, or by a combination of lives and years, and then provides, in substance, that upon the expiration of such prior limited interests, the ownership in fee simple absolute of the land, or the corresponding interest in the thing other than land, shall belong to a person who is presently identifiable, such person has an indefeasibly vested remainder.’ The court then held that the abaolute ownership was to pass to the then identifiable persons, the testator's two daughters, hence each took a vested remainder, and intestacy would be avoided.

It is true that the word ‘belong’ is used in the above quotation, but it is used in connection with a person ‘presently identifiable’, and comment h refers to comment (i) for a definition of this latter expression. Comment (i) states that a person is “presently identifiable' when such remainder is limited, (1), to one or more named persons, in Re Estate of Wallace the daughters were named in the instrument; or (2), to ‘the children’ of a transferring testator who is survived by one or more children; or (3), to the ‘children’ of a person other than the transferor, which person is dead and survived by children still alive when the creating instrument speaks.' (Emphasis ours.) Under this definition the taker of the remainder was not ‘presently identifiable’ at the death of testatrix, since Amy Hansen was then living. The language in the Wallace case is therefore not authority that the words ‘shall belong to’ convey a vested interest when used in connection with a person or persons not then identifiable. Bochte v. Chess, 124 Cal.App.2d 321, 268 P.2d 493, cited by appellant, involved a presently identifiable taker of the remainder.

Appellant has argued that the decision in Re Estate of Dunphy was written near the time of Mrs. Stanford's death, and demonstrates the care, employed by lawyers of that day, to void the rule of In re Estate of Fair, 1901, 132 Cal. 523, 60 P. 442, 64 P. 1000. Since In re Estate of Fair had declared void a trust to convey real property, there is no reason to conclude that the language here used in regard to an estate consisting entirely of personal property, was employed for that purpose. In the Dunphy case, real property as well as personal was involved, hence the necessity of favoring a contruction that would render the trust valid.

In Re Estate of Norris, 78 Cal.App.2d 152, 177 P.2d 299, 302, the language of the decree of distribution differed from that used in the will, stating that upon the death of the survivor, the trust should at once be at an end, and that the trustee ‘shall deliver’ all the property in the trust to the children, share and share alike, or their legal heirs by right of representation, and did not use the language ‘grant and deliver’ used in the will. The distributive portion of the decree was held to be clear and unambiguous, creating a vested remainder in the class which would open to include after born members. In the present case we have the combination of terms ‘shall belong to’ and ‘be delivered to’. The meaning of ‘be delivered to’ is clear as a direction to turn over possession of the trust res. In re Estate of Norris, supra. The words ‘belong’ and ‘deliver’ are clearly not synonyms nor do they have at all similar connotations. The testatrix was therefore not reiterating the direction to deliver possession. ‘Belong’ is given several varying definitions in the dictionary, one of them ‘to be the property of’, and others, ‘to be connected with as an attribute or adjunct’, ‘to be the concern, business or function (of)’. In Hackett v. California Laundry, 7 Cal.App.Supp.2d 757, 758, 45 P.2d 833, 834, the words ‘belonging to’ used in a statute creating a lien against certain personal property were interpreted by the court. It said that when these words were given their natural and ordinary meaning they are equivalent ‘when used to designate the legal relationship between a person and property, to ‘the property of’ or ‘owned by.’ They imply ownership.' And in San Francisco v. McGovern, 28 Cal.App. 491, 152 P. 980, the court in interpreting the expression ‘belong to’ used in section 1 of Article XIII of the California Constitution stated that the words were to be given their ordinary meaning, except where the meaning has been established by statute or by judicial construction. That case cites several early out of state authorities which give to the aforesaid expression the meaning ‘owned by’. And, see, State Land Settlement Board v. Henderson, 197 Cal. 470, 480, 241 P. 560. The primary meaning of the word ‘belong’ implies ownership. 10 C.J.S. page 241. The cited authority states that the word also has other meanings, one of them being ‘to be at the disposal of or in the power of’, citing but one authority for that meaning, the New York case cited herein by appellant. In re Hitchins' Estate, 43 Misc. 485, 89 N.Y.S. 472, 476. Since there is no showing that at the time of Mrs. Stanford's death there was an adjudicated meaning given to the expression ‘shall belong to’ the words are to be taken in their ordinary sense, and if so construed they obviously mean that the property in the trust is to become the property of the child or children upon the death of the holder of the life estate.

In re Estate of Easter, supra [24 Cal.2d 191, 148 P.2d 602], the decree of distribution provided that ‘Upon the death of the said Catherine Easter, the trust hereinbefore referred to shall terminate and all of the property then in the hands of the trustee * * * shall go to and vest in the heirs at law of the said Alfred Easter, deceased, in accordance with the statute of succession * * *, and the trustee is directed to convey, deliver and pay over all the corpus * * * unto such heirs * * *.’ (Emphasis added.) The Court held that the decree was properly construed by the trial court to distribute a contingent interest only to the heirs, ‘the contingency being their survivorship of the testator's wife upon whose death the trust terminated. * * * The decree of distribution, by providing that two things should occur ‘Upon the death of the said Catherine Easter,’ namely, 1. ‘the trust * * * shall terminate,’ and 2. ‘all the property then in the hands of the trustee * * * shall go to and vest in the heirs at law of said Alfred Easter, deceased,’ clearly indicates an intention that the interests of the heirs should vest at the time of the termination of the trust. Any other construction would ignore the normal and usual meaning of the words ‘shall go to and vest in the heirs at law’.' The court distinguished the Wallace case, in that there only the meaning of ‘shall distribute’ was involved. It noted also that the use of the future tense in a decree of districution ordinarily connoted future action. The decree in the instant case also employs language connoting future action. Upon the death of Amy Hansen the one-third of a million dollars, shall become the property of her child or children and be delivered to them. We conclude that the language here employed in the decree was sufficiently similar to that used in the decree of distribution in Re Estate of Easter, supra, to warrant the contruction that a contingent interest was created, rather than one which vested at the death of the testatrix.

Accordingly, it is our view that the decree of the trial court with respect to the appellant Ruth Barton finds support in the record in this respect and we hold that Stanford University is entitled to this fund because of our holding in the appeal of Stanford University herein.

It is urged that the trial court in the present case was bound by the decision of the same Superior Court in 1927, when that court decided that Paragraph I(b), a provision for Jennie L. Lawton and her child or children, vested ownership of one-third of a million dollars in Daniel Lawton, the child of Jennie, at the death of Mrs. Stanford. Daniel Lawton, having predeceased his mother, and having made her the legatee of his interest in the Stanford estate, one-third of a million dollars was therefore distributed to Mrs. Lawton's estate. Paragraph I(c), the construction of which is here in question, is practically identical with I(b). While it would at first glance appear that as far as Stanford University, the residuary legatee, is concerned, the doctrine of res judicata might estop it, see, Dillard v. McKnight, 34 Cal.2d 209, 209 P.2d 387, 11 A.L.R.2d 835, there having been a final judgment on the merits against Stanford, and the issue there, as here, having been, Did the language create a vested or a contingent interest, still there is authority that the issue in the 1927 case may not be considered identical with that now before the court. Freeman on Judgments (Fifth Ed., Vol. 2, p. 1748, § 822) states that ‘a judgment in a proceeding to construe a will is not conclusive as to the construction of a clause the meaning of which is not shown to have been determined; nor is it conclusive with respect to property of the estate which was not involved in the proceeding.’ The third of a million dollar fund here involved was not involved in the earlier case, and the order declaring a vested interest extended only to Paragraph I(b) of the will and not to Paragraph I(c).

The law of the case is not here involved because this is not a second appeal of the same case. No precedent which must now be followed was established by any appealate court in the matter. The case having been dismissed by stipulation of the parties, no opinion was ever rendered, even though it is true that under sec. 955, Code of Civ.Proc., such dismissal results in an affirmance of the judgment. (4 Cal.Jur.2d 591–599).

Appeal of Leland Stanford Junior University

The Board of Tustees of Stanford University appeals from the judgment awarding the trust fund to respondents as the adopted children of Mrs. Amy Hansen. The trial court found that it was the testamentary intent of Mrs. Stanford to include adopted children when she used the language ‘child or children of Amy Hansen.’ In the opinion of the trial court no intent to exclude adopted children was expressed in the will, and it therefore permitted a letter of the testatrix to be introduced into evidence, on the basis of which it determined that there was an intent to include adopted children in the class ‘child or children’. This letter was written by Mrs. Stanford on November 23, 1897, seven years before the execution of the will, in order to put on record with Dr. David Starr Jordan, president of Stanford University, the fact that neither she nor her husband had ever adopted Mrs. Stanford's niece, the daughter of her brother, Charles Lathrop. The letter discloses that Charles' wife died when this child was an infant, and before her death she had requested Mrs. Stanford to care for her. Leland Stanford, Sr., was opposed to taking the niece into their home as their own child to fill the place of their deceased son. Jennie Lathrop was therefore placed with Mrs. Stanford's sister until the time of the sister's death, and was thereafter sent to a convent boarding school until she was eighteen. Mrs. Stanford supported and educated her, and Mr. Stanford remembered her generously in his will. Mrs. Stanford stated her reasons for placing this letter on record with Stanford as follows:

‘So very many unexpected and new phases in humand nature have been brought to my attention, and in a way have added to my sorrows—some hearts have hardened towards me who should have been sympathetic and tender because of my dear husband's loving rememberance of them and these revelations of character have led me into a train of thought that impels me to write this letter to you that you may fully understand the relations that exist betwixt my niece Jennie L. Lathrop and myself.’ And in closing, ‘I make this explicit explanation in this letter to you that you may hold it sacred and if * * * the subject would be discussed whether or not Jennie L. Lathrop had been adopted, you can use this letter and defend me.

‘I hope and pray that there will be no need to ever produce it, but I have learned by very sad experiences the greed for gain tempts beyond the ability to resist. My dear brother Charles G. Lathrop the Father has been most kind in allowing me to care and do for her as best pleased me, and he will never deviate from his love and loyalty to me, or my memory.’

The letter also states that Jennie and all the children of Mrs. Stanford's brothers had been then living had been given one hundred thousand dollars in her husband's will. She expresses the opinion that she has won the love and devotion of this niece. From this letter the trial court concluded that Mrs. Stanford understood the meaning and effect of adoption, that she believed that an adopted child would have the same rights as a natural child, hence when she made a bequest to the ‘child or children’ of her niece, Mrs. Hansen, she intended to include any children that Mrs. Hansen might adopt.

There can be no doubt but that the letter indicates that testatrix understood that an adopted child of her own would have a claim against the Stanford estate. Or, interpreted more broadly, the she understood that any adopted child would have rights in the estate of its adoptive parents. In other words, Mrs. Stanford knew something of the adoption laws, which in any case she would be presumed to know. The letter may also be said to indicate her fears that there was a need to protect Stanford University against claims of relatives.

Mrs. Stanford knew that her nieces Amy Hansen and Jennie Lawton each had one young son at the time she executed her will. There were no adopted children in either of these families during Mrs. Stanford's life, and there is no evidence that Mrs. Stanford knew that either considered adopting children. Respondents admit that the will is silent on the subject of adoption, but contend that the above letter supports the finding that the testamentary intent included adopted children. They say that the rule may be true as contended for by appellant and stated in 3 Restatement of Property, Sec. 287, that ‘When a limitation is in favor of the ‘children’ of a designated person, all persons adopted by the designated person are excluded from the possible takers thereunder except when a contrary intent of the conveyor is found from additional language or circumstances.' That extrinsic evidence may be admitted to explain an ambiguity created by the language of the will, or by the fact that the testator knew that the person to whose children he made the gift had adopted or was contemplating the adoption of children, is well established. In re Estate of Pierce, 32 Cal.2d 265, 196 P.2d 1. Respondents assume that an ambiguity exists in the will permitting the introduction of extrinsic evidence.

However, no ambiguity appears as to the intent of the testatrix from the language of the will. The words are to be given their usual and ordinary construction. No ambiguity was created by external circumstances at the time the will was executed nor at Mrs. Stanford's death, for there was then a child of the blood living in both the Hansen and Lawton families. The adoption herein relied on took place more than twenty years after Mrs. Stanford's death. The general rule of construction set forth in the Restatement and in numerous other authorities is well summarized in the following language of an Ohio case, Rodgers v. Miller, 43 Ohio App. 198, 182 N.E. 654, 657:

‘There is a presumption that words used in a will are used in their primary and ordinary sense. It is generally held that when a testator uses the word ‘child’ he means a natural child, unless the context clearly shows that he means to use the term in a sense including adopted as well as natural children. This is particularly the fact when the testator speaks, not of his own children, but of the children of other persons. 28 Ruling Case Law, p. 252, states the rule as follows:

“There are numerous decisions to the effect that a testator who by will makes provision for his own ‘child or children’ by that designation should be held to have included an adopted child, since he is under obligation in morals if not in law to make provision for such child. If, however, a will makes provision for a ‘child or children’ of some other person than the testator, the adopted child of such person is not included, unless other language of the will makes it clear that it was so intended. In the absence of circumstances tending to show that the testator anticipated the adoption, or knew that it had already taken place, and therefore probably intended to treat the person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will. A limitation in a will, to a child or children, or conditioned upon the survivorship of a child or children, is not deemed to include an adopted child, where the grantor or testator is a stranger to the adoption.”

Undoubtedly the draftsmen of Mrs. Stanford's will were familiar with the construction to be given the terms used under the rules of interpretation then prevailing (and still generally in effect), and there is no showing that Mrs. Stanford intended to give them a broader meaning. There appears to be no California case directly in point. In re Estate of Pierce, supra, deals with an ambiguity created in a will by the use of ‘lawful issue’ inserted in parenthesis after the word ‘children’. The gift was made to the ‘children (lawful issue)’ of testator's brother. [32 Cal.2d 265, 196 P.2d 3.] In this case testator knew that his brother had taken two foster children into his family. Extrinsic evidence was introduced to show that the testator had disapproved of the adoption of these children, had threatened to disinherit his brother, and the brother had promised not to adopt them. It was held that they did not inherit. The Pierce case reiterates the rule that it is the testator's intent as derived from the language of the will that must control, and when an uncertainty appears on thf face of the will, or from the circumstances under which it was executed, extrinsic evidence is admitted. In the Pierce case the testator had used ‘lawful issue’ to qualify the word ‘children’ thereby creating an ambiguity on the face of the will. The court points out in its opinion that the adoption law of this state does not require persons other than adoptive parents to regard adopted children as children born of such parents, and does not require them to so regard them ‘in the drafting of private instruments such as wills, trusts, and deeds.’ ‘The adoption statutes of this state do not purport to affect the relationship of any person other than that of the parents by blood, the adopting parents, and the child.’ In re Darling's Estate, 173 Cal. 221, 225, 159 P. 606, 608.

We therefore conclude that adopted children were not within the testamentary intent in the gift to the ‘child or children of Amy Hansen’, that the extrinsic evidence was erroneously admitted, and that in any event it is not reasonably subject to the inference drawn therefrom by the trial court.

It is our view then that the residuary legatee, appellant Stanford University, is entitled to the fund. The trial court made a finding that there was an intent to exclude the residuary legatee from all of the money placed in the trust fund for her relatives. This intent was gathered from the language ‘All the rest, residue and remainder of my property and estate, * * * not hereinbefore disposed of’, the trial court holding that by this expression she intended that Stanford should receive only such portion of her estate as she might have overlooked or failed to dispose of in her will. The word ‘hereinbefore’ does not show any intent to exclude the residuary legatee from gifts therein provided for which might lapse. In re Estate of Kelleher, 205 Cal. 757, 272 P. 1060, 1062, quoting from In re Estate of Upham, 127 Cal. 90, 59 P. 315, the court stated that the rule is that where a residuary bequest “is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by special words of unmistakable import, he will take whatever may fall into the residue, whether by lapse, invalid disposition, or other reasons'.' And in O'Connor v. Murphy, 147 Cal. 148, 81 P. 406, it is said that it must appear unequivocally that the testator intended that the residuary legatee should be thus excluded. The finding that there was any such intent to exclude is clearly unsupported. The will itself evidences Mrs. Stanford's devotion to the University and her concern that any relative might attempt to attack the will or the grants previously made by her and her husband to that institution.

In view of the foregoing the judgment is affirmed in so far as it decrees that appellant Barton is not entitled to take but said judgment is reversed as to appellant Stanford University with directions to the trial court to enter its decree in favor of Stanford University as prayed for.

KAUFMAN, Justice.

DOOLING, Acting P. J., and DRAPER, J. pro tem., concur.

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