CROCKER NATIONAL BANK v. Robert L. Garrison, Objector and Respondent. (1981)

Whit Garrison Sanders and Collis Garrison Sanders appeal an order declaring they are not entitled to share in the distribution of the estate of Durward C. Garrison, Sr.   The issues raised by their appeal are:  (1) whether Whit and Collis, Durward Sr.'s grandchildren, who were living at the time he executed his will but adopted out of his family after his death, are included in the class of remaindermen of his testamentary trust described as the “lawful issue” of his deceased son;  and (2) whether Durward Sr.'s widow effectively exercised a testamentary power of appointment by appointing to an inter vivos trust, the corpus of which she had entirely distributed during her lifetime.

FACTS

In 1956, while domiciled in California, Durward Sr. executed the will in question.   At the time the will was executed, Durward Sr.'s wife, Margaret, his two sons, Robert and Durward Jr., and his two grandsons, Whit and Collis, both natural born children of Durward Jr., were all living.   Durward Sr.'s will established a “Residuary Trust,” to receive approximately one-half the property in his estate.   The income from the trust was payable to Margaret for life.

The pertinent provision of the residuary trust in Durward Sr.'s will provides that, after the death of Durward Sr.'s wife, “the Trustee shall divide the remaining trust estate into equal shares as follows:  One share for each then living child of mine and one share for the then living lawful issue of each deceased child of mine.”   Although the will provides the word “issue” is to include legally adopted children, it is silent as to whether Durward Sr. intended to disinherit his then living grandchildren—his son's lineal issue—if perchance the grandchildren were subsequently “adopted out” of the family by a stepparent.

Two years after the will was executed, Durward Jr. and his wife Betsy were divorced and Betsy took custody of their sons, Whit and Collis.   In 1960, Betsy married her second husband, Elmer K. Sanders.   Five years later, on April 27, 1965, Durward Sr. died, domiciled in California.   In 1967, two years after Durward Sr. died, Collis and Whit were adopted by their stepfather in a Texas judicial proceeding with their father's consent.   The boys' natural father, Durward Jr., died in 1971;  Margaret Garrison, Durward Sr.'s wife, died in 1978.

In his will Durward Sr. also established a “Marital Deduction Trust.”   The income from this trust was payable to Margaret for her life;  Margaret also was given a general testamentary power of appointment over the corpus of the trust.   In November 1965, shortly after Durward Sr.'s death, Margaret established a revocable, amendable inter vivos trust, the income from which was payable to her for life.   On Margaret's death, the corpus was to be divided among her sons and nephews.   The trust agreement provided:  “It is contemplated that the Trustee shall receive additional assets from the Trustor's estate upon her death and these assets shall become a part of the trust estate.”

In early 1967, Margaret began liquidating the assets of the trust, making gifts to various members of her family.   Later that year she amended the trust provisions for distribution of the trust property on her death.   In 1971, while the distribution of the trust corpus in the form of inter vivos gifts continued, Margaret executed her will.   In her will she exercised the power of appointment given her in Durward Sr.'s will by appointing the property in the marital trust to her inter vivos trust.   The residue of her own estate was also left to the trustee of the inter vivos trust to be distributed according to the terms and conditions of the trust.   Later in 1971, Margaret amended the trust provisions a second time;  Durward Jr.'s widow (his second wife) was to receive a gift of $50,000, and the balance of the trust was to be divided among her two nephews (10% each) and her son Robert (80%).   Distribution of all the assets of Margaret's inter vivos trust was completed by early 1973.   As stated above, Margaret died in 1978, domiciled in Texas.

After Margaret's death, the trustee petitioned for instructions regarding distribution of the property in the residuary and marital trusts.   The superior court concluded Whit and Collis' adoption out of the family before the deaths of Durward Jr. and Margaret precluded them from qualifying as members of the class of “then living lawful issue” of Durward Jr.   Accordingly, the court determined the entire corpus of the residuary trust should be distributed to Robert, the only surviving son of Durward Sr.   The court also found Margaret had not intended to revoke her inter vivos trust by distributing all its assets during her lifetime.   The court therefore concluded Margaret had effectively exercised the power of appointment and the property in the marital trust should be distributed according to the terms of her inter vivos trust.

DISCUSSION

I

 The “cardinal” rule in the construction of wills, which takes precedence over all, is that the intention of the testator as expressed in the will must be given effect to the greatest extent possible.  (Prob. Code, § 101;  Estate of Grove (1977) 70 Cal.App.3d 355, 362, 138 Cal.Rptr. 684;  Estate of Flint (1972) 25 Cal.App.3d 945, 961, 102 Cal.Rptr. 345;  Estate of Wilson (1920) 184 Cal. 63, 66–67, 193 P. 581;  Estate of Russell (1968) 69 Cal.2d 200, 205, 70 Cal.Rptr. 561, 444 P.2d 353, and cases cited therein.)   Secondly, the will must be construed in accord with the testator's intent at the time the will is executed.   The court must endeavor to ascertain that intent based on the terms of the will and the circumstances surrounding its execution.  (Estate of Pittman (1980) 104 Cal.App.3d 288, 292, 163 Cal.Rptr. 527.)   When a testator fails to make clear his intent as to possible exigencies which may arise in the future and there is no extrinsic evidence from which the testator's intent can be inferred, the court will impute knowledge of statutes, case law and public policy to the testator and assume the testator intended his will to be consistent with such law and policy.  (See, e. g., Estate of Heard (1957) 49 Cal.2d 514, 522, 319 P.2d 637;  Estate of Pittman, supra, 104 Cal.App.3d 288, 292–293, 163 Cal.Rptr. 527.)

These crucial circumstances surrounding the execution of Durward Sr.'s will must be taken into account in ascertaining his intent:  Whit and Collis were the only grandchildren of Durward Sr., and the only “lawful issue” of either of his sons, in existence at the time he executed his will.   As such, they were natural objects of Durward Sr.'s bounty and were most likely among those persons the testator intended to share in his estate by his use of the term “lawful issue.”  (Cf. Estate of Pierce (1948) 32 Cal.2d 265, 269, 196 P.2d 1.)

The authorities relied on by the trial court (Estate of Moulton (1976) 63 Cal.App.3d 1, 6, 133 Cal.Rptr. 500;  Wells Fargo Bank v. Huse (1976) 57 Cal.App.3d 927, 932–938, 129 Cal.Rptr. 522;  Estate of Miner (1963) 214 Cal.App.2d 533, 540–541, 29 Cal.Rptr. 601;  Prob. Code, § 257) in its attempt to ascertain Durward Sr.'s intent in using the term “lawful issue” are totally inapposite to the present factual situation and in no way compel the conclusion reached by the trial court.   In both Estate of Moulton, supra, and Wells Fargo Bank v. Huse, supra, the instruments in question (a will and a trust, respectively) were executed before 1931.   Lacking extrinsic evidence of intent, the interpretation of the words “lawful issue” in both cases rested on former Civil Code section 1334 which specified testamentary dispositions to “issue” would vest the property in those entitled to succeed to the property according to the laws of interstate succession.   In 1931, Civil Code section 1334 was incorporated into the Probate Code as section 108 and the word “issue” was deleted.¹  Thus the term “issue” is no longer defined by statute as the intestate takers of an individual's property.  Estate of Miner, supra, is also unlike the present case because the court there dealt with a class gift to “heirs.”   In addition, the trust document in Miner specifically provided the trust was to be distributed, upon termination, to the “heirs in accordance with the laws of succession ․”  (Id., at p. 536, 29 Cal.Rptr. 601.)   Similarly, Probate Code section 257 defines an adopted child's rights of intestate succession.   The authorities relied on by the trial court lend no support to its decision.

Estate of Russell (1971) 17 Cal.App.3d 758, 95 Cal.Rptr. 88, and Estate of Haneberg, (1971) 19 Cal.App.3d 643, 96 Cal.Rptr. 807, like the case at bench, involved “adoption out” situations.   Both Russell and Haneberg, however, are distinguishable on their facts.   Contrary to the present case, in both Russell and Haneberg the children whose rights were in question were born after the testator's death.   Moreover, in Russell, both the will and the decree of distribution which incorporated its terms provided the words “child,” “issue” and “descendant” included children legally adopted at the time of the testator's death but did not include children legally adopted after the testator's death.  (Estate of Russell, supra, 17 Cal.App.3d at p. 768, 95 Cal.Rptr. 88.)   The Russell court stated:

“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.”  (Ibid.)

Accordingly, without benefit of extrinsic evidence, the court interpreted the decree “to mean that the testator did not intend to include within the meaning of the words ‘children or issue surviving’ children who would be adopted out of the family.”  (Id., at p. 769, 95 Cal.Rptr. 88.)

Russell purports to be based on the application of the rule of construction enunciated in Estate of Heard, supra, 49 Cal.2d 514, 522, 319 P.2d 637.   Nevertheless careful analysis demonstrates the decision was, in reality, based on the interpretation of the language defining the terms “child,” “issue” and “descendant.”  (Estate of Russell, supra, 17 Cal.App.3d at pp. 768–769, 95 Cal.Rptr. 88.)   The rule of construction applied in Heard, that a testator is presumed to have intended to pursue a course consistent with that expressed in the statutes, case law and public policy, is only applicable where there is no evidence of a contrary intent.   By defining “issue” so as to exclude children adopted after the testator's death, it is clear the testator in Russell intended to pursue a course contrary to the public policy that favors treating adopted children equally with biological children.

 The sole issue before the Supreme Court in Heard was whether the term “lawful issue” as used in the testatrix' will included a child adopted by the testatrix' son after her death.  (Estate of Heard, supra, 49 Cal.2d at p. 517, 319 P.2d 637.)   The Supreme Court held where there is no extrinsic evidence as to a testator's intent, the court must assume in interpreting the will that he was aware of existing statutes, case law and public policy and, “unless a contrary intent is expressed, that he intended that his will would ․ be compatible with the general body of the law and public policy.”   (Id., at p. 522, 319 P.2d 637.)   Because the public policy in California is to treat adopted children the same as biological children, the court held adopted children were included within the term “lawful issue.”

The Heard decision is notable for several reasons:  First, Estate of Heard did not treat with a disinheritance of a class beneficiary under a will as did the trial court here;  it dealt with an “adoption in,” not an “adoption out,” fact situation.   Second, the court distinguished, but did not overrule, Estate of Pierce, supra, 32 Cal.2d 265, 196 P.2d 1.   Thus, the following is still good law:

“In the determination of the rights of an adopted child under a will, the controlling question is not whether the adopted child would inherit from its adoptive parent under the statute of succession, but whether the adopted child is included among the persons the testator intended to share in his estate.”   (Estate of Pierce, supra, 32 Cal.2d 265, 269, 196 P.2d 1;  italics added.) 2

Third, conformable to this general rule, the Heard court referred to Probate Code section 257 as a source for determining the general public policy in California regarding adoption but did not view section 257—which defines an adopted child's rights of intestate succession—as controlling when interpreting the term “lawful issue” in a will.   The Supreme Court stated:

“Nor is it significant that prior to the 1955 amendment to section 257 of the Probate Code it had been indicated that adopted children inherit from but not through their adoptive parents [citations].  Assuming that is correct as to cases arising prior to the effective date of said amendment, it affords no solution here where we are concerned not with inheritance but rather with whether the words ‘lawful issue’ used in a will includes an adopted child.”   (Estate of Heard, supra, 49 Cal.2d at p. 522, 319 P.2d 637, italics added.)

Heard therefore does not mandate that Probate Code section 257 control the interpretation of the words “lawful issue” as used in a will;  if it did, the version of Probate Code section 257 in effect at the time the will was executed in Heard would have prevented the child adopted by the testatrix' son from being included within the meaning of the words “lawful issue.”

Two further California cases have examined the effect of “adoption out” on the right to take under a will or its equivalent.   In Estate of Esposito (1943) 57 Cal.App.2d 859, 135 P.2d 167, the court was called upon to interpret the California lapse statute providing that if the devisee died before the testator, leaving lineal descendants, such descendants take the estate so given.   The court held that the issue relating to the construction of the lapse statute was the same as if the case involved the construction of a will containing the language of the lapse statute.

Esposito left all of his estate to his son, although the latter had predeceased his father.   One of the Esposito grandchildren had been adopted by strangers.   Although this adoption severed her legal relationship toward her natural parents and established a new one with the foster parents, the court held, nevertheless, that her status as a relative by blood of the kindred of her parents was not altered.   The grandchild adopted by strangers was held entitled to share equally in the testator's estate with her brother, who had not been adopted.  (Estate of Esposito, supra, at p. 865, 135 P.2d 167.)

“In other words their right to take the legacy inheres in their status of lineal descendants.   It is no more dependent upon the laws of succession than the right of their father would have been if he had survived his father.”   (Id. at p. 863, 135 P.2d 167.)

The Supreme Court in Estate of Zook (1965) 62 Cal.2d 492, 42 Cal.Rptr. 597, 399 P.2d 53, examined section 257 in light of the tax consequences on a devisee (grandchild) who had been “adopted out.”   The court said:

“Usually, or often, an adoption situation involves the severance, in fact as well as in law, of one set of parental bonds and the replacement thereof by another.   The law of intestate succession, in section 257, recognizes this usual attitude.   But in a situation where, as here, by will, a testatrix has proclaimed her intention to observe the natural family bonds, the situation may well demand different treatment.   This should be particularly true where the testatrix was not a party to the adoption and thus could not be deemed to have voluntarily or constructively severed her natural family bonds with the child.”  (Id., at p. 495, 42 Cal.Rptr. 597, 399 P.2d 53.)

There is nothing in the beneficent public policy expressed in section 257 placing “adopted children on a level with natural born offspring” in matters of intestate succession (Estate of Heard, supra, 49 Cal.2d at p. 518, 319 P.2d 637;  Estate of McCormack (1969) 2 Cal.App.3d 492, 499, 82 Cal.Rptr. 651) that require us to conclude Durward Sr. intended to disinherit his known then living grandchildren, to preclude their participation in the distribution of the residuary trust established under his will, merely because his son consented to their adoption by a stepfather.   Given the fact Whit and Collis were in being at the time Durward Sr. used the words “lawful issue” and taking into account the most natural and probable warm, loving relationship typically existent between grandparents and grandchildren, the rational inference is that Durward Sr.'s will was made in contemplation of these specific grandchildren participating in the distribution of the residuary trust should their natural father and grandmother predecease them.

 The will and the record are totally devoid of any evidence of an intent to exclude Whit and Collis because of an unanticipated adoption.   Whit and Collis clearly qualify as “lawful issue” under Durward Sr.'s will as of the critical date of execution of the will.

II

No California case has been found precisely in point;  however, the foregoing conclusions are buttressed by the decision of the Supreme Court of Pennsylvania in the factually analogous case of Matter of Tracy (1975), 464 Pa. 300, 346 A.2d 750.   In 1944, Dr. Tracy established a revocable inter vivos trust.   Income from the trust was to be paid to Dr. Tracy and his wife for their lives and, after their deaths, to their son and daughter in equal shares.   Upon the death of either of the trustor's children, that child's share was to be distributed to his or her “issue.”   The trustor's son had a daughter, Stephanie, by his first wife, Cora, in 1938.   Cora took custody of Stephanie, when they divorced four years later;  Cora remarried in 1946.   Dr. Tracy was declared incompetent in 1949 and until his death in 1956, lacked capacity to amend or revoke the trust.   Stephanie was adopted by her stepfather with her natural father's consent in 1951;  her natural father died in 1972.

The question addressed in Tracy was whether Stephanie was entitled to participate in the distribution to the “issue” of her natural father even though she had been adopted out of the family.   The Pennsylvania Supreme Court concluded Stephanie qualified as “issue” of her natural father, reasoning:

“Had settlor, his wife, and Stephen Jr. all died before Stephanie's adoption in 1951, there would be no question that she would have been entitled to participate in this distribution as the daughter of Stephen Jr.   The terms of the trust instrument clearly identify Stephanie as one of the objects of settlor's bounty.   It is unlikely that settlor would have desired to exclude Stephanie from benefits under the trust merely because his son gave his consent to her adoption by her stepfather.   Absent any evidence of an intent to exclude Stephanie because of an unanticipated adoption, and given the clear evidence in the trust instrument of an intent to include her, we are not prepared to apply legal rules of construction to thwart settlor's intent.”   (Id., at p.752;  italics added.)

In re Taylor's Estate (1947) 357 Pa. 120, 53 A.2d 136—a decision by the Supreme Court of Pennsylvania—involved a testamentary trust giving a life estate to the testatrix's brother, William, which upon William's death was to be distributed to his ‘issue.’   One of William's children, Rachael, died before him, survived by a son, George.   George was legally adopted, many years before the execution of the testatrix's will, by persons in no way related to the testatrix or to William.   The court held George was not barred by his adoption from participation in distribution under the will;  he took by virtue of the testamentary designation of a class to which he belonged, notwithstanding his adoption, and did not take by right of inheritance;  a gift to a number of persons not named, but answering a general description, is a gift to them as a class, where a contrary intention does not appear from the will, the court held that George clearly fell within the class of ‘issue’ as set forth in the will, since he was the natural issue of the life tenant.

The reasoning of the court is most perceptive:  (1) although the intestacy statute expressly provided that an adopted person was not entitled to take from or through his natural relatives, the act does not attempt to do more than to regulate the rights of inheritance;  (2) the question is one of identity and not of the right of inheritance;  (3) physically, George was certainly within the description of ‘issue’;  (4) there was no statute directing such a construction;  (5) the adoption did not change the propriety of George's description as issue of William, whether the description was set down before or after the adoption;  (6) this conclusion was fortified by the fact that although the intestacy statute expressly provided that an adopted person was not entitled to take from or through his natural relatives, the corresponding section of the wills statute made no such exclusionary provision.  (To the same effect see also In re Lonergan's Estate (1959) 18 Pa.D. & C.2d 193;  In re Buffington's Trust (1961) 26 Pa.D. & C.2d 551;  Mississippi Valley Trust Co. v. Palms (Mo.1950) 229 S.W.2d 675;  Amoskeag Trust Co. v. Haskell (1950) 96 N.H. 89, 70 A.2d 210.)

 Such reasoning applies with equal force here.   The question here is one of identity of donees, not the right of inheritance.   Nothing in section 257 militates against the right of these “adopted out” grandchildren to receive property by will from their natural grandparent.

III

 Whit and Collis also contend Margaret's attempted exercise of the power of appointment was ineffective because the distribution of the corpus of her inter vivos trust during her lifetime revoked or terminated the trust.   Because Durward Sr. provided in his will that the property in the marital trust should be distributed in accordance with the terms of the residuary trust if Margaret should fail to exercise the power of appointment, Whit and Collis argue they are entitled to share in the property over which Margaret had a power of appointment.   The law of the domicile of the donor of the power determines the effectiveness of the exercise of a power of appointment (Estate of Erdman, 264 Cal.App.2d 335, 345–346, 70 Cal.Rptr. 774, citing Estate of Sloan, 7 Cal.App.2d 319, 333 et seq., 46 P.2d 1007 and numerous authorities from other jurisdictions;  see also Civ. Code, § 1380.1, which provides the common law governs, except as modified by statute).   Consequently, whether Margaret effectively exercised the power given her by Durward Sr.'s will is a question of California law.

A trust may be expressly revoked in California by a writing delivered to the trustee (Civ. Code, § 2280).   Although Margaret's inter vivos trust agreement provided for express written revocation, she never expressly revoked her trust.   Nevertheless, Whit and Collis argue the distribution of the original corpus manifested an intent to revoke the inter vivos trust and should be treated as an implied revocation.   Under California law, a trust terminates when its purposes have been accomplished (Civ. Code, § 2279).   Both the question of whether Margaret intended to revoke her trust by making the inter vivos distributions and the question of whether the trust terminated of its own accord by the distribution of the corpus depend on whether the inter vivos distributions accomplished the trust's purposes.

 Margaret's inter vivos trust agreement clearly indicates the trust had two purposes:  (1) to provide her with income;  and (2) to serve as a vehicle for distribution of property after her death.   While the distribution of the original corpus indicates Margaret no longer intended to use the trust as a source of income, there was ample evidence from which the court could conclude she still intended the trust to serve the second purpose.   Margaret's will, in which she appointed and bequeathed property to the trust, was executed after she began distributing the corpus;  the provisions of the trust relating to distribution of property on her death were also amended twice after the liquidation began.   Moreover, the trust agreement specifically refers to the additional property which was to be placed in the trust at Margaret's death.   From this provision the court could infer Margaret intended the trust to serve as a means for disposing not only of the original corpus but also of this additional property;  distribution of the original corpus alone would not entirely accomplish this purpose.   Finally, although certain individuals who were not remainder beneficiaries under the trust received inter vivos gifts from the original corpus, not all the remainder beneficiaries did receive such gifts.   For example, Margaret made inter vivos gifts to her sisters, who were not trust beneficiaries, but none to her nephews, who were.   From this evidence the court could conclude Margaret did not intend the inter vivos gifts of the original corpus to take the place of the gifts to the remainder beneficiaries under the trust.   Substantial evidence supports the court's finding Margaret did not intend to revoke the inter vivos trust.   The absence of a corpus in the inter vivos trust at the time of the exercise of the power of appointment did not prevent Margaret from effectively exercising the testamentary power of appointment she received under Durward Sr.'s will.

The order is affirmed with respect to the marital trust but reversed and remanded for proceedings consistent with this opinion with respect to the residuary trust.

I concur in the opinion of the court insofar as it holds the widow effectively exercised her power of appointment by appointing to her inter vivos trust.   I must, however, respectfully dissent from the ruling the testator's grandchildren remained his “lawful issue” within the meaning of his will, despite their adoption out of his family.

In my view, this case is governed by the decision in Estate of Russell, 17 Cal.App.3d 758, 95 Cal.Rptr. 88.   Testator Harvey Russell died in 1960, leaving a will executed in 1959.   The will created a trust leaving property to certain “primary beneficiaries” for life, and then to a class of “children or issue surviving.”   The will, and the decree of distribution incorporating its terms, provided “child,” “issue” and “decedent” include children legally adopted at the time of decedent's death, but exclude children adopted thereafter.   Victor was a great grandchild of the testator, born to a primary beneficiary after the testator's death.   When Victor was about five months old, he was given up for adoption, and he was subsequently adopted by third persons unrelated to the testator.   The issue on appeal was whether the adoption removed Victor from the class of “children or issue surviving.”   The Russell court, construing the decree of distribution incorporating the language of the will and without benefit of extrinsic evidence, held the adoption excluded Victor from the class.   In reaching this result the court relied both upon the holding of Estate of Heard, 49 Cal.2d 514, 319 P.2d 637, and upon its language at page 767, 319 P.2d 637, “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.”   In reliance upon this principle, the court invoked Probate Code section 257, which since 1955 has provided:

“ ‘[a]n 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, ․' ”  (Italics from Estate of Russell, supra, 17 Cal.App.3d 758, 769, fn.4, 95 Cal.Rptr. 88.)

A contention that section 257 is limited in application to inheritance by succession, was rejected at page 769, 95 Cal.Rptr. 88, citing Chambers v. Lamb, 186 Cal. 261, 265, 199 P. 33;  Estate of Heard, supra, 49 Cal.2d 514, 516–517, 319 P.2d 637;  Estate of Garey, 214 Cal.App.2d 39, 40, 29 Cal.Rptr. 98;  Estate of Goulart, 222 Cal.App.2d 808, 811, 819, 35 Cal.Rptr. 465.   The Russell opinion ended:

“In Goulart, the court, in concluding that section 257, as amended in 1955, applies to testamentary dispositions as well as to rights of succession (at pp. 822–823 [35 Cal.Rptr. 465]) observed that the enactment of the amended statute intended ‘to accomplish a complete severance of the former relationship of the adoptee with his natural, or biological, relatives, and to make them no longer “kindred” in the eyes of the law, and on the other hand, to create a new kinship’ (at p. 820 [35 Cal.Rptr. 165].)”  (Estate of Russell, supra, 17 Cal.App.3d 758, 769, 95 Cal.Rptr. 88).

Further light was shed on the Russell holding by the decision of the same panel of the same court three months later in Estate of Haneberg, 19 Cal.App.3d 643, 96 Cal.Rptr. 807.   In Haneberg the court reached the opposite result from Russell on similar facts and similar testamentary language.   The crucial difference was the Haneberg will and trust had been drafted before the 1955 amendment to Probate Code section 257.   At the time the Haneberg will and trust were drawn, adoption cut off inheritance from natural parents, but not from other natural relatives (Estate of Haneberg, supra, at p. 647, 96 Cal.Rptr. 807).   It was this law which Haneberg invoked by his reference to “surviving issue,” and “lawful issue,” not the law in effect in 1971, when the terms were construed.   The significance of the distinction between Russell and Haneberg is that we are not dealing with some sort of attempt by the Legislature or the courts to override an intention expressed by a testator.   Rather, when a testator uses the word “issue” without contrary explanation, he is expressing the intention the class defined as “issue” is subject to modified by adoption according to the law of succession in effect when he used the words.   Since 1955 the word “issue” has included those adopted in, and excluded those adopted out, unless the testator affirmatively expressed a contrary intent.

Here Durward Sr.'s will expressly provides for the inclusion of children adopted by his sons but does not expressly exclude grandchildren who, like Whit and Collis, are adopted out of the Garrison family.   Nevertheless, Durward Sr. was aware of the possibility of adoption when he executed his will.   Nothing in his will or trust suggests he intended the term “lawful issue” to have a meaning inconsistent with California's public policy on adoption.   Under that public policy, Whit and Collis are the lineal descendants or “issue” of their adoptive father, Elmer Sanders, not of their biological father, Durward Jr.   Consequently, the superior court could infer Durward Sr. did not intend his grandsons Whit and Collis to share in his estate, if they were adopted out of the Garrison family.   The trial court did not err in finding Whit and Collins are not entitled to take under the will.

The instant case differs factually from Estate of Russell, supra, 17 Cal.App.3d 758, 95 Cal.Rptr. 88, in that the excluded Russell great grandchild was born after the death of the testator, and therefore was unknown to him.   Here Whit and Collis contend Durward Sr. intended them to take as “lawful issue” because they were alive, known to him, and fit the definition at the time he executed the will.   These circumstances point to a contrary conclusion.   When the will was executed, Whit and Collis would not have taken under it, because their father, Durward Jr., was living.   Instead of providing for his children and grandchildren individually, Durward Sr. followed the same approach as Russell, and established a formula by which his beneficiaries could be determined in light of future circumstances.   The testator's intent is effectuated by applying his formula, interpreted in accordance with the governing law.

The majority would distinguish Russell on the ground the testator there had departed from public policy by excluding children adopted into his family after his death.   This difference is unpersuasive.   In each case the testator provided for adopting in but failed to express his intent as to adopting out.   In Russell the court filled the gap by resort to the public policy expressed in Probate Code section 257.   So should we here.

The majority has reached its result by “taking into account the most natural and probable warm love relationship typically existent between grandparents and grandchildren ․”  In this case the grandmother, who survived to see the changes in circumstances of the parties, including the adoption, and who had a power of appointment to adjust the distribution of the estate to such changes, cut Whit and Collis off without a sou.   Her action may not of course be used to impute a similar state of mind to the testator at the time he drew the will.   It does, however, highlight the frailty of the majority's assumption that for a grandparent to know Collis and Whit was to love them and want to provide for them.   If we are to indulge in such speculation, I would favor the less sentimental one, that the testator did not expect Durward Jr. to die, and that the “lawful issue” were included to satisfy the rule against perpetuities.

The truth is we do not and cannot know what the testator's intent would have been with respect to adoption out, it he had thought about it.   There should be some degree of uniformity and predictability in the construction of wills under these circumstances.   The Legislature in Probate Code section 257 stated what the rules should be in the analogous context of intestate succession.   In Estate of Russell, supra, the court of appeal recognized the analogy and applied the same rule to the construction of a will.   If, like the majority here, a grandfather making a will wants a different rule applied to his grandchildren, he should be required to say so.   I would affirm the order of the court below in its entirety.

FOOTNOTES

1.   At the times relevant to the decisions in Moulton, supra, and Huse, supra, (1923 and 1930) section 1334 of the Civil Code provided that:  “ ‘A testamentary disposition to ‘heirs,’ ‘relations,’ ‘nearest relations,’ ‘representatives,’ ‘legal representatives,’ ‘personal representatives,’ or ‘family,’ ‘issue,’ ‘descendants,’ ‘nearest’ or ‘next of kin’ 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.'  (Italics added.)”  (Wells Fargo Bank v. Huse, supra, 57 Cal.App.3d at p. 935, fn. 4, 129 Cal.Rptr. 522.)Probate Code section 108 now provides:  “A testamentary disposition to ‘heirs,’ ‘relations,’ ‘nearest relations,’ ‘representatives,’ ‘legal representatives,’ ‘personal representatives,’ ‘family,’ ‘nearest (or next) of kin’ 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 Division 2 of this code.  [Fn. omitted.]  Such terms are used as words of donation, and not of limitation, when the property is given to the person so designated, directly, and not as a qualification of an estate given to the ancestor of such person.”

2.   This Heard-Pierce rule represents the overwhelming majority view:  It was said in 2 Am.Jur.2d, Adoption, section 95, pages 935–936:  “In determining the rights of an adopted child under a ․ will, the statutes governing rights of inheritance of adopted children may be considered as an aid to the construction of the instrument, but the controlling question is not whether the adopted child would inherit from its adoptive parent under the statutes of descent and distribution, but whether the adopted child is included among the persons the grantor, settlor, or testator intended to share in the estate;  statutes applicable to cases of intestacy cannot be invoked to upset the provisions of such instruments.   The child is not claiming under the laws of inheritance, but his rights depend upon the intention as expressed in the instrument, and that intent cannot be supplied by a construction of the meaning of the words of the statute defining the status of adopted children.”  (Italics added;  fns. omitted.)  (See also In re Pierce Estate, 32 Cal.2d 265, 269, 196 P.2d 1, ann. 166 A.L.R. 150;  Williams v. Ward, 15 Cal.App.3d 381, 384, 93 Cal.Rptr. 107;  Abramovic v. Brunken, 16 Cal.App.3d 719, 722, 94 Cal.Rptr. 303;  In re Estate of Chambers (Pa.) 438 Pa. 22, 263 A.2d 746, 747;  Comer v. Comer, 195 Ga. 79, 23 S.E.2d 420, 424;  In Re McEwan's Estate, 128 N.J.Eq. 140, 15 A.2d 340;  Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672;  Newsome v. Scott, 200 Va. 833, 108 S.E.2d 369.)

STANIFORTH, Acting Presiding Justice.

WIENER, J., concurs.