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Court of Appeal, First District, Division 1, California.

IN RE: ESTATE of Harvey A. RUSSELL, also known as H. A. Russell, Deceased. Victor Albert LAZZERONI, II, a minor, by his Guardian ad Litem, Garth V. Lacey, Appellant, v. John M. THOMPSON, as Guardian ad Litem of designated minor remaindermen and all unborn remaindermen, Respondent.

Civ. 28108.

Decided: March 17, 1971

Garth V. Lacey, Salinas, for guardian ad litem, appellant. Thompson & Hubbard, Monterey, for respondent.

This appeal presents a question of first impression in this state. It concerns the effect of adoption out of a testator's family of a great-grandchild who, except for his adoption, would be included in a description of the class of remaindermen of a testamentary trust. Stated more precisely, the issue is as follows: Where a testamentary trust provides for distribution to a class of remaindermen described as the ‘children or issue surviving’ of certain primary beneficiaries with life estates therein, does the class of remaindermen include a child who was born after the testator's death and who was adopted by strangers in blood to the testator before the date of the termination of the trust, or is such person excluded from said class of remaindermen by virtue of the fact of his adoption out of the family? We have concluded that the adoption results in such exclusion. Accordingly, the order of the trial court must be affirmed.

Testator Harvey A. Russell died on May 19, 1960, leaving a will executed on March 7, 1959, providing for the establishment of a testamentary trust during the lifetimes of various named ‘primary beneficiaries.’ Pursuant to its provisions the trust terminates upon the death of the last survivor of the ‘primary beneficiaries' at which time the trust estate is to be paid and distributed to the remaindermen. During the existence of the trust the net income is to be distributed to the ‘primary beneficiaries' in monthly or other convenient installments. If any of the ‘primary beneficiaries' shall die before the termination of the trust with ‘children or issue surviving’ such net income from his or her share of the trust is to be paid to such children or issue ‘upon the principle of representation.’ Upon the termination of the trust if any of the ‘primary beneficiaries' shall have died without ‘children or issue surviving,’ his or her share of the trust estate shall be distributed so as to augment proportionately the shares of the trust held for the benefit of the other beneficiaries. Under the provisions of the trust it is specified that the words ‘child,’ ‘issue’ and ‘descendant’ as used in the trust shall be construed to include children legally adopted at the time of the testator's death and shall exclude children legally adopted after the time of his death.

After the testator's death and after the trust had been judicially established by preliminary and final decrees of distribution, Carol Ann Camille Spear, one of the named primary beneficiaries, gave birth to a child named Victor. Victor was approximately five months old when he was given for adoption to the Children's Home Society and was subsequently adopted by third persons unrelated in blood to the testator.

Pursuant to Probate Code, section 1120,1 the trustee petitioned the court for instructions as to whether Victor had any interest in the trust after his adoption. The court determined that Victor had no interest in the trust and directed the trustee to exclude him and his issue from sharing in the income or corpus of the trust. This appeal is from the order making such determination and direction. In making such determination the trial court concluded that the testator intended the phrase ‘children or issue’ to be governed by the policy expressed in section 257 in effect at the time the will was executed. That section, in pertinent part, provides: ‘An adopted child shall be deemed a descendant of one who has adopted him, the same as a natural child, for all purposes of succession by, from or through the adopting parent the same as a natural parent. An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by adoption, * * * nor does such adopted child succeed to the estate of a relative of the natural parent, * * *.’

Victor contends that since the decree of distribution had become final prior to his adoption the court had no jurisdiction, in the absence of any contention of ambiguity, to examine the will to determine the testator's intentions. It is well settled in this state that in the absence of ambiguity, the effect of a will is controlled by the decree of distribution when final. The decree is said to be ‘conclusive as an ascertainment and adjudication of the terms of the trust, and of the rights of all parties claiming any legal or equitable interest under the will. [Citations.] The decree supersedes the will and prevails ‘over any provision therein which may be thought inconsistent with the decree.’ [Citation.]' (Keating v. Smith, 154 Cal. 186, 191, 97 P. 300, 302; Estate of Easter, 24 Cal.2d 191, 194, 148 P.2d 601; Estate of Van Deusen, 30 Cal.2d 285, 290, 182 P.2d 505.) However, when the decree taken alone in uncertain, vague or ambiguous, the will, although it may not be used to impeach the decree which has become final, can be used to explain it. (In re Ewer's Will, 177 Cal. 660, 662, 171 P. 683; Fraser v. Carman-Ryles, 8 Cal.2d 143, 146, 64 P.2d 397 [overruled on other grounds, Estate of Platt, 21 Cal.2d 343, 349, 131 P.2d 825].)

In the instant case the issue as to whether Victor had any interest in the testamentary trust was not determined in the decree of final distribution. We cannot, therefore, resolve the issue by looking at the decree, but must look to the will. (See Estate of Easter, supra, 24 Cal.2d 191, 197, 148 P.2d 601.) Decedent's will is not a part of the record on appeal but a motion has heretofore been made by respondent2 to augment the record to include a copy of the will. That motion also requests that the record be augmented to include certain documents in Victor's adoption proceeding. We reserved our ruling on the motion until we were prepared to decide the case on the merits. Since the will is necessary to our disposition of the case for the limited purpose above indicated, the record is ordered augmented to include a copy of decedent's will. With respect to the adoption documents, we have concluded that they are not needed to aid us in determining the appeal. There is no question on appeal as to the legality of Victor's adoption. Such legality and the fact of adoption is conceded by Victor through appellant, who is his guardian ad litem. Moreover, the court below specifically found that Victor was legally adopted. That finding is not challenged.

Adverting to the testator's will, we first observe that it does not contain any express provision as to his intention in regard to the status of a remainderman who is adopted out of the testator's family. Such intention must be ascertained from the testator's use of the phrase ‘children or issue surviving.’ Since no extrinsic evidence was offered or presented to explain the meaning of this phrase, we are relegated to construing its meaning as a judicial function solely on the basis of the terms of the will. (Parsons v. Bristol Development Co., 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839; Estate of Russell, 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 444 P.2d 353.) Accordingly, in making this interpretation we are not bound by the construction of the instrument made by the trial court. (Parsons v. Bristol Development Co., supra; Estate of Russell, supra.) Our interpretation, however, coincides with that made by the trial court.

Before proceeding to construe the will according to the intention of the testator, we observe that when Victor was adopted his relationship to his natural mother was severed and a new relation was created between Victor and the adopting parents. (Civ.Code, §§ 228 and 229; Matter of Cozza, 163 Cal. 514, 523–524, 126 P. 161 [overruled on other grounds, Adoption of Barnett, 54 Cal.2d 370, 378, 6 Cal.Rptr. 562, 354 P.2d 18].) By virtue of such adoption Carol Spear was relieved, from the time of the adoption, of all parental duties toward, and all responsibility for, Victor, and she had no right over him. (Civ.Code, § 229; In re Darling, 173 Cal. 221, 223–224, 159 P. 606; Estate of Goulart, 222 Cal.App.2d 808, 820, 35 Cal.Rptr. 465.) In sum, Carol Spear, from the time of the adoption, was no longer Victor's parent in the eyes of the of law. (Estate of Goulart, supra; In re Darling, supra, at p. 223, 159 P. 606.)

Adverting to the testator's will, we note that the paramount rule in the construction of wills is that ‘A will is to be construed according to the intention of the testator.’ (§ 101; Estate of Russell, supra, 69 Cal.2d 200, 204, 213, 70 Cal.Rptr. 561, 444 P.2d 353.) The objective of this rule is to ascertain what the testator meant by the language he used. (Estate of Russell, supra, at p. 206, 70 Cal.Rptr. 561, 444 P.2d 353; Estate of Resler, 43 Cal.2d 726, 732, 278 P.2d 1.) We also observe other rules here applicable which govern the interpretation of wills, i. e., that every expression of a will is to be given some effect (§ 102) and that all parts of a will are to be construed in relation to each other. (§ 103.)

In the instant case, the testator, in designating the remaindermen who would take the share of the primary beneficiaries, merely referred to them as ‘children or issue surviving.’ With respect to ‘adopted’ children, the will indicates that the testator had some familiarity with the status of adopted children. Thus he acknowledged that he had ‘the same love and affection’ for Carol Spear (Victor's natural mother), ‘the adopted daughter of my deceased adopted daughter, Camille Spear. * * * as I would have if [she] were my natural issue * * *.’ (Par. Third.) He also specifically provided in the will that the words ‘child,’ ‘issue,’ and ‘descendant’ as used therein should ‘be construed to include children legally adopted at the time of my death and shall exclude children legally adopted after the time of my death.’ (Par. Sixth, subd. H.)

The phrase excluding children adopted after the testator's death is susceptible of the construction that it includes children adopted into the family as well as those adopted out of it. If we construe this phrase to mean that the testator had in mind only children legally adopted into the family, the will is left in the posture where the testator has not said anything about children who would be adopted out of the family after his death. Such construction leaves us without any basis other than the rule declared in Estate of Heard, 49 Cal.2d 514, 319 P.2d 637, for interpreting the will as to what the testator's wishes would have been if the situation of children adopted out of the family were called particularly to his mind. That rule is stated thusly: ‘Courts * * * by necessity, draw on the statutes, case law and public law in construing an instrument as they must suppose that the draftsman did not intend to pursue a course contrary to them unless he so states.’ (At p. 522, 319 P.2d at p. 642.)

In Heard the Supreme Court was presented with the question whether the phrase ‘lawful issue’ used in a will included a child adopted by the testator's son after the will was made and the testatrix was deceased. In holding that the testamentary disposition of the residue of the trust to the ‘lawful issue’ of her son included the adopted child, the Supreme Court rationalized that a testator is bound to know existing statutes affecting testamentary dispositions and that, unless a contrary intent is expressed, a testator intends that his will would be compatible with the general body of the law and public policy. ‘We cannot suppose,’ said the court, ‘that wills are made in a vacuum; that the status of an adopted child being the same as a biological offspring, which is the public policy of the state, may be completely ignored, or that it was ignored by a testator when making a will any more than he may be said to ignore many other rules of law and public policy.’ (At p. 522, 319 P.2d at p. 642.) This public policy recognizes that adopted children are lineal descendants of their foster parents and they are in the line of descent from him by virtue of statutory command ad if that line had been established by blood ties, and in this state such policy has been expressed by the Legislature as embodied in the adoption statutes (Civ.Code, §§ 221, 227, 228) and the intestacy statutes (§ 257). (See Estate of Heard, supra, at pp. 518–521, 319 P.2d 637.)

The situation presented in the instant case is the converse of that involved in Heard. However, the principles therein expressed are equally applicable here. No contrary intent having been expressed in the will, we are entitled to assume that the testator did not intend to pursue a course contrary to that expressed in the statutes, case law and public policy, but, rather, that he intended his will to be compatible with such law and public policy. Under that law and policy, an adopted child, upon the severing of the relationship between him and his natural parent by adoption, succeeds to the estate of one who has adopted him and not to the estate of his natural parent or a relative of the natural parent. (§ 257; see Estate of Garey, 214 Cal.App.2d 39, 42, 51, 29 Cal.Rptr. 98; Estate of Goulart, supra, 222 Cal.App.2d 808, 820–823, 35 Cal.Rptr. 465.)

The motion to augment the record is granted to include a copy of decedent's will and denied in all other respects. The order appealed from is affirmed.


1.  Unless otherwise indicated, all statutory references are to the Probate Code.

2.  Respondent is the guardian ad litem of the designated minor remaindermen and all unborn remaindermen.

MOLINARI, Presiding Justice.

SIMS and ELKINGTON, JJ., concur.