MOST WORSHIPFUL GRAND LODGE OF FREE AND ACCEPTED MASONS OF CALIFORNIA v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION III

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District Court of Appeal, Fourth District, California.

ESTATE of Emma C. HEARD, Deceased. MOST WORSHIPFUL GRAND LODGE OF FREE AND ACCEPTED MASONS OF The State of CALIFORNIA, an unincorporated association, The Regents of The University of California, Martha C. La Berge and Norris Cummings, a/k/a Norris E. Cummings, Appellants, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and Shirley T. Heard, Guardian of the person and estate of John Wilkerson Heard III, a minor, Respondents.

Civ. 5362.

Decided: March 21, 1957

William R. Hulsy, Bakersfield, for appellants Martha C. La Berge and Norris Cummings. Thomas J. Cunningham, Berkeley, for appellant Regents of the U. of Cal., John E. Landon, Berkeley, of counsel. Henry C. Clausen and Henry C. Clausen, Jr., San Francisco, for appellant Most Worshipful Grand Lodge of Free and Accepted Masons of the State of Cal. Conron, Heard & James, Bakersfield, for respondent Shirley T. Heard, guardian of the person and estate of John W. Heard III, a minor.

Respondent Bank of America National Trust and Savings Association (hereinafter referred to as the Bank) as testamentary trustee under the last will and testament of Emma C. Heard, deceased, filed a petition under section 1120 of the Probate Code for instructions as to the construction of a certain provision of the will and the distribution thereunder of a portion of decedent's estate. All potential beneficiaries under the trust were made parties. They include Shirley T. Heard, as guardian of John Wilkerson Heard III, her adopted son, Norris Cummings, Martha C. La Berge, Most Worshipful Grand Lodge of Free and Accepted Masons of the State of California (hereinafter referred to as Grand Lodge), Bakersfield Masonic Lodge, and the Regents of the University of California (hereinafter referred to as the University).

Emma C. Heard made her will on September 28, 1935, and on October 22, 1935, made a codicil thereto. These instruments, drafted by an attorney, provided for spendthrift trusts, the principal beneficiaries of which were her son John W. Heard, Jr. and his ‘lawful issue’. The will makes the following pertinent provisions: After several specific bequests, one to her brother for $5 and no more; the residue was given in trust to respondent Bank to pay from the net income $200 per month to her son for life; several small payments, including one for $50 per month to her cousin May Durham Cummings, and the remainder of the net income to her son ‘or if he be deceased, then to his lawful issue, if any, distributed per stirpes and not per capita.’ It provided further that if her son left ‘no lawful issue at the time of his death’, then the income was to go to May Durham Cummings, for life, and ‘after her death to her living issue’, per stirpes. Emergency power to invade the corpus was given to the trustee for payments to the son or ‘his said lawful issue’. The will further provided, in one place, that upon the death of her son the residue of income should be distributed ‘among his lawful issue, if any, by right of representation’, and in another, that in the event of the death of her son ‘without lawful issue’ the income was to be paid to May Durham Cummings, or upon her death ‘to her issue by right of representation’. The trust was made terminable upon the death of the last survivor of ‘such of the children of said May Durham Cummings as may be living’ at the time of her death, one G. Stanley Rice, Eulalia Bethel, her son, and ‘the lawful issue, if any, of my said son’.

The trust then provided that ‘If, at the termination of said trust as hereinabove provided, there should not then be living any lawful issue of my said son, John W. Heard, Jr., then the whole of the residue of my estate shall be forthwith paid over and distributed as follows: (a) To the * * * Grand Lodge * * * $5,000 * * *’; and the residue to the University. For further particulars see In re Estate of Heard, 25 Cal.2d 322, 153 P.2d 553; and In re Estate of Heard, 107 Cal.App.2d 225, 236 P.2d 810, 27 A.L.R.2d 1313.

Five years before the above will was made her son, John W. Heard, Jr., married and was later divorced and had a nervous breakdown. He drank quite a bit and in 1933 he married Shirley Heard. From the date of his second marriage John W. Heard, Jr. was ill ‘off and on’ until the death of his mother on November 23, 1939. Her son was then 40 years old and his wife was 33. They had no children.

On March 18, 1946, the estate was distributed, pursuant to and in accordance with the terms of the will. On October 19, 1950, John W. Heard, Jr. and his wife adopted one Rickey Johnson, then aged 6 years and 9 months, and he is a stranger to the blood of decedent. John W. Heard, Jr. died on March 14, 1955. May Durham Cummings died about eight months after Mrs. Heard, and left two children, Mr. Bertha D. La Berge and Norris Cummings, appellants herein. On April 8, 1955, Shirley Heard was appointed guardian of the person and estate of the adopted child, and in that capacity she made formal demand upon the trustee for payment of the residue of the income of the trust under the provisions of the will and the decree.

After a short hearing on the question, the trial court made its findings that the testatrix intended to include in the phrase ‘lawful issue’ any adopted children of her son, and the order was entered accordingly. La Berge, Cummings, the Grand Lodge and the University appealed. The sole question involved is whether the trial court was justified in so finding.

It is the contention of appellants that since there was no conflict in the evidence and no issue of fact presented, the trial court construed the phrase here involved erroneously, ignored the rules of interpretation, the case decisions on the subject, and the intention of the testatrix, as expressed in the will, and accordingly this court, on appeal, is not only authorized, but impelled to make a contrary construction, citing In re Estate of Platt, 21 Cal.2d 343, 131 P.2d 825; In re Estate of Lefranc, 38 Cal.2d 289, 296, 239 P.2d 617; In re Estate of Clark, 64 Cal.App.2d 636, 149 P.2d 465; In re Estate of Pierce, 32 Cal.2d 265, 271, 196 P.2d 1; In re Estate of Sullivan, 86 Cal.App.2d 890, 894, 195 P.2d 894; and In re Estate of Boyd, 24 Cal.App.2d 287, 289, 74 P.2d 1049.

It is respondents' claim that the term ‘lawful issue’, as used in the will, had no strict meaning; that as between John W. Heard, Jr. and the adopted son, he was his ‘lawful issue’; that under the old commonlaw adoption was unknown and accordingly the term ‘issue’ did have a meaning synonymous to the heirs of the body, but that the modern cases and statutory interpretation of the word ‘issue’ has often included an adopted child, citing Ansonia National Bank v. Kunkel, 105 Conn. 744, 136 A. 588; Bray v. Miles, 23 Ind.App. 432, 54 N.E. 446; and 1334, Civil Code, now Probate Code section 108, originally enacted in 1872, which was in effect until 1931, at which time the word ‘issue’ was omitted. That section provided in part:

‘A testamentary disposition to ‘heirs,’ ‘relations,’ * * * ‘issue’, * * * of any person, without other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person, according to the provisions of the title on succession, in this code.'

Respondents contend that since a legally adopted child is the ‘lawful issue’ of the adoptive parents the reference to the child in the will was all inclusive, citing In re Estate of Tibbetts, 48 Cal.App.2d 177, 178, 119 P.2d 368; In re Estate of Winchester, 140 Cal. 468, 74 P. 10; Estate of Newman, 75 Cal. 213, 16 P. 887; and In re Estate of Pierce, 32 Cal.2d 265, 196 P.2d 1.

It is then argued that since the will was drawn by a lawyer who understood the technical meaning of the word ‘lawful issue’, as disclosed by the above authorities, the testatrix likewise had this technical knowledge of the term, and that thereby she intended it to apply to her son's adopted children as well as his natural-born children, and that the use of the words ‘issue per stirpes', and ‘issue by right of representation’, included an adopted child. Appellants use the same argument to reach a contrary conclusion. Finally, respondents maintain that upon this showing, and from the very terms of the will itself, when considered as a whole and with the surrounding facts, it could be rightfully held that the testator, at the time of the execution of the will, intended that any adopted children of her son would take under it.

In determining this last claim very little evidence was taken as to the surrounding facts, not otherwise disclosed by the documents to be construed and the facts here presented. It mainly involves the condition of John W. Heard's health and marital status, both prior to and after the execution of the will, as above indicated.

From the sequence of events above related respondents argue that the trial judge may well have concluded that the testatrix knew that her son, due to his physical condition, was unlikely to have children; that the adoption of a child might well be contemplated; and accordingly she intended to make provision for such ‘lawful issue’ of his. This conclusion lacks evidentiary support. There is no evidence that John W. Heard, Jr. or his wife was at any time not capable of producing a child, that this subject was ever discussed or made known to the mother, or that an adoption of this or any other child was ever contemplated. In fact this child was not adopted until 15 years after Mrs. Heard made the will and over ten years after her death. Had a child been adopted by them before she made the will or had such an adoption been contemplated, all within her knowledge at the time, a different question might well arise. In some cases the time of the adoption has been held to be a ‘circumstance of controlling importance’, or a ‘controlling circumstance’. Hall v. Crandall, 25 Del.Ch. 339, 20 A.2d 545; Middletown Trust Co. v. Gaffey, 96 Conn. 61, 112 A. 689, 692. See also Wyeth v. Merchant, D.C.W.D.Mo. 1940, 34 F.Supp. 785, affirmed in a memorandum opinion in Merchant v. Wyeth, 8 Cir., 1941, 120 F.2d 242; In re Puterbaugh's Estate, 261 Pa. 235, 104 A. 601, 5 A.L.R. 1277; 70 A.L.R. 621, 626, and cases cited.

In Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472, and Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 144 A.L.R. 664, it was held that where, as in the instant case, the adoption follows the demise of the testator, an almost conclusive presumption arises that he did not intend to provide for the adoptee. Some states have attempted to resolve the problem by declaring adopted children to be included by statutory enactment. Sec. 16(b) Pennsylvania Wills Act of 1917, now 20 P.S. § 180.14. But it is of interest to note, under the Commissioner's notes in reference to that revision it is said:

“This clause is also new. It is limited to the case of children adopted before the date of the will since it is a statutory canon of construction referable to the time when the testator makes his will. An extension to include children adopted after the date of the will would tend to defeat the intention of the testator.” See In re Ashhurst's Estate, 133 Pa.Super. 526, 3 A.2d 218, footnote 3, at page 219.

California does not have a comparable statute. The legislature of New York, in adopting section 115 of its Domestic Relations Law, McK. Consol Laws, c. 14, a part of its adoption statute, provides:

‘As respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the foster child is not deemed the child of the foster parent so as to defeat the rights of remaindermen.’

Historically, the word ‘issue’ included only the descendants begotten from the loins of the named ancestor. No legal machinery for the adoption of children existed to raise the question of its broader inclusiveness.

Webster's Collegiate Dictionary, Fifth Edition, defines ‘issue’ as ‘A going, * * * or flowing out * * * The outcome or result; * * *. Progeny; offspring’. In Hall v. Crandall, 25 Del.Ch. 339, 20 A.2d 545, 547, it is said that: ‘* * * the prima facie meaning of the word ‘issue’ is ‘heirs of the body’.' In Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 425, 144 A.L.R. 664, it states:

‘Generally * * * ‘issue,’ * * * in a will * * * [is] intended to refer to natural or blood relationships, and would not include an adopted child in the absence of circumstances clearly showing that the testator so intended.'

See also Grundmann v. Wilde, 346 Mo. 327, 141 S.W.2d 778, 780, and In re Cuddeback's Will, 174 Misc. 322, 20 N.Y.S.2d 862, 864, where it is said: ‘There is no such person as ‘issue’ by adoption.' To the same effect is In re Gurlitz' Will, 134 Misc. 160, 235 N.Y.S. 705, 709, where it is said:

“Issue' is a legal term * * * and its use is persuasive of the thought that the aim of testatrix was to limit her bounty to those in whose veins the same blood as her own coursed.'

Likewise is In re Howlett's Estate, 366 Pa. 293, 77 A.2d 390, 393. In an early California case, In re Comassi's Estate, 1895, 107 Cal. 1, 7, 40 P. 15, 17, 28 L.R.A. 414, it is said that ‘The adoption of a stranger in blood is not the issue of the marriage, and cannot be treated as its equivalent.’ See also In re Estate of Pierce, 32 Cal.2d 265, at pages 271–272, 196 P.2d 1, where it is held that ‘lawful issue’ is the offspring of the parentage and excludes adopted children.

Restatement of the Law of Property, Section 292, Comment a, page 1546, reads in part:

‘Persons who are not offspring of the designated person are included in neither ‘children’ nor ‘issue’ without an affirmative finding of the conveyor's intent to make such inclusion, based upon additional language or circumstances. * * *.'

See also In re Estate of Pierce, 32 Cal.2d 265, 271, 196 P.2d 1, 5, where it is said:

‘* * * the meaning of ‘lawful issue’ has been determined from the general scheme or purpose of a will considered as a whole * * * or from the fact that the testator used different terms such as heirs, issue, and children interchangeably to identify the same persons * * * the meaning of the term has frequently been determined by the circumstances surrounding the execution of the will, such as the testator's knowledge of the adoption and his approval or disapproval thereof * * * or the testator's knowledge of the inability of persons, whose ‘issue’ are provided for in the will, to bear children.' The court there concluded that the circumstances preceding the execution of the will in that case indicated that the testator intended to use the expression ‘lawful issue’ in its ordinary meaning, as offspring of parentage, and to exclude adopted children, citing 3 Page on Wills, 152; and cases collected in 117 A.L.R. 691.

See also In re Estate of Clark, 64 Cal.App.2d 636, 149 P.2d 465. 3 Page on Wills states (Sec. 1027, pp. 152, 154):

‘Issue is a word whose primary meaning, in the absence of anything to show a contrary intent, is that of legitimate lineal descendants indefinitely * * *. It does not include an adopted child.’

Thompson on Wills, 3rd Ed. p. 434, sec. 278, states as follows:

‘Unless the context shows a different intention, the term ‘issue’ does not include illegitimate offspring, stepchildren, or adopted children.' Probate Code section 106 provides:

‘Technical words are not necessary to give effect to any species of disposition by a will; but technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense.’

In Stevenson on ‘Drafting Wills and Trust Agreements—Dispositive Provisions' [1955] p. 288, sec. 12.3, it is said:

‘The weight of authority in this country seems to be that the ‘children’, ‘issue’, or ‘descendants' of a son or daughter would not include adopted—even formally adopted—children of that son or daughter. ‘To hold otherwise’, one court has said, ‘would make it possible for the property of a testator to be directed to strangers of his blood without his knowledge or consent.’'

Restatement of the Law of Property, sec. 287, p. 1521, Comment a on Subsection (1) reads in part:

‘* * * the conveyor normally does not desire the designated parent to have power, by adopting any person he may choose, in effect to appoint the subject matter of the conveyance to such person.’

At the time of the execution of the will here involved, the California law on succession and adoption was that any adopted child of a testator's son would be his heir but not the testator's heir. For inheritance purposes a grandmother would not legally be the grandmother to an adopted child of her son, and the son's adopted child would not succeed to her estate. In re Estate of Jones, 3 Cal.App.2d 395, 39 P.2d 847; In re Estate of Rowell, 132 Cal.App.2d 421, 282 P.2d 163. It is a well recognized rule of law that a testatrix is presumed to know the law as it existed at the time of the making of the will and such is true of an attorney who drew the will. In re Estate of Heard, 107 Cal.App.2d 225, 232, 236 P.2d 810, 27 A.L.R.2d 1313; In re Estate of Watkinson, 191 Cal. 591, 217 P. 1073. This is particularly true where the words ‘legal issue’ are used several times in the will and no other such term is used which would indicate any other meaning or that an exception to the rule should attach to these words. There is a presumption that legal terms embodied in a will drawn by a lawyer were used in their legal sense.

Regardless of the provisions of section 1334 of the Civil Code as it existed prior to 1931, the construction of that section as applied to the instant case has been sufficiently disposed of in Re Estate of Pierce, supra; In re Estate of White, 69 Cal.App.2d 749, 754, 160 P.2d 204; In re Estate of Jobson, 164 Cal. 312, 315, 128 P. 938, 43 L.R.A., N.S., 1062; In re Estate of Blake, 157 Cal. 448, 108 P. 287; and 33 C.J. Sec. 5, pp. 818–819; 48 C.J.S., Issue, p. 779. Neither section 1334 of the Civil Code nor any of the succession statutes alter the prima facie, technical meaning of the term ‘lawful issue’. The paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator. Probate Code secs. 100 and 101; In re Estate of Foley, 126 Cal.App.2d 810, 812, 273 P.2d 26. To determine such intention, a will must be examined in its entirety, and the court's inquiry is limited to ascertaining what the testator meant by the language which was used. Its function is to construe a will, not make one, and to ascertain the testator's intention as expressed. Moxley v. Title Insurance & Trust Co., 27 Cal.2d 457, 165 P.2d 15, 163 A.L.R. 838. In re Estate of Northcutt, 16 Cal.2d 683, 688, 107 P.2d 607; Security-First National Bank of Los Angeles v. Wellslager, 88 Cal.App.2d 210, 198 P.2d 700; In re Estate of Pierce, 32 Cal.2d 265, 196 P.2d 1.

Order reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.