Estate of Russell

• Decision Date: 21 May 1971
• Citation: 17 Cal.App.3d 758,95 Cal.Rptr. 88
• Court: California Court of Appeals Court of Appeals
• Parties: 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 and Litem of designated minor remaindermen and all unborn remaindermen, Respondent. Civ. 28108.

Page 88

95 Cal.Rptr. 88

17 Cal.App.3d 758

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 and Litem of designated minor remaindermen and all unborn remaindermen, Respondent.

Civ. 28108.

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

May 21, 1971.

Garth V. Lacey, Salinas, for appellant.

Thompson & Hubbard, Monterey, for respondent.

MOLINARI, Presiding Justice.

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. In the course of the administration of his estate the probate court made its decree of preliminary distribution on May 25, 1962 and its decree of final distribution on December 28, 1962. Each of these decrees established a testamentary trust in the language of paragraph 'Sixth' of said will. Under its terms the trust continues during the lifetime of various named 'primary beneficiaries' and 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' until the termination of the trust, and upon the termination of the trust the persons who are then receiving the income of the trust shall receive the trust estate in the same proportions as they are entitled to receive such income. 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.

On August 27, 1963, Carol Ann Camille Spear (hereinafter Carol Spear), one of the named primary beneficiaries, gave birth to a child named Victor. When Victor was approximately five months old he was given up for adoption to the Children's Home Society and he 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 proceeding evolved into a contest between the guardian ad litem for Victor (appellant herein) and the guardian ad litem for the designated minor remaindermen and all unborn remaindermen (respondent herein). At the hearing only one witness, the aforementioned Carol Spear, testified. She was called by appellant and her testimony concerned itself with the fact and date of Victor's birth, his subsequent adoption, and her identity as a beneficiary of the subject trust. The only other evidence adduced by appellant was a certified copy of the aforementioned decrees of preliminary and final distribution. No evidence was presented or adduced by respondent.

The trial court made findings of fact respecting the fact of Victor's birth and his subsequent adoption, and found that at the time of decedent's death Victor's natural mother, Carol Spear, was living and that Victor was yet unborn. The court also found that the estate of a decedent had been probated and that a final decree of distribution in said estate had been entered establishing the testamentary trust of decedent according to the terms of which Carol Spear was a beneficiary whose share, upon her death, would go to her children or issue surviving her. Further findings were made as follows: 'The decedent * * * was familiar with the status of adopted persons'; that he 'did not provide for the possibility of class remaindermen bring adopted out of his family by third persons,' and that he 'intended his will would fit and be compatible with the general body of the law and public policy in effect at the time the will was executed.' From these 'findings' ² the court concluded that any rights Victor may have had under decedent's will or trust as a class remainderman were dependent on his surviving Carol Spear as her child or issue; that Victor ceased to have the status of a child or issue of Carol Spear 'as the words 'children or issue surviving' are used in the decedent's trust and the decree of Final Distribution * * * on the date of his adoption * * *'; and that Victor 'is not a class remainderman under the terms of the decedent's will or trust * * *.' Upon the basis of these conclusions the court directed the trustee to exclude Victor and his issue from sharing in the corpus or income of the trust established by the will of decedent. It is from this order that appellant appeals.

The announcement of the trial court's decision prior to the making of its findings of fact and conclusions of law was in the form of a memorandum opinion. Such an opinion may not be used to alter or impeach the court's findings or judgment (DeArmond v. Southern Pacific Co., 253 Cal.App.2d 648, 653, 61 Cal.Rptr. 844; Magna Development Co. v. Reed, 228 Cal.App.2d 230, 235, fn. 2, 39 Cal.Rptr. 284), but it may be resorted to to ascertain the grounds of its decision (Warren Southwest, Inc. v. Wicks, 276 Cal.App.2d 152, 155, 80 Cal.Rptr. 723; Arruda v. Arruda, 218 Cal.App.2d 410, 417, 32 Cal.Rptr. 257), to learn the process by which it reached its decision (Warren Southwest, Inc. v. Wicks, supra; Magna Development Co. v. Reed, supra), to ascertain its theory of decision (Warran Southwest, Inc. v. Wicks, supra; Estate of Johnson, 240 Cal.App.2d 742, 747, 50 Cal.Rptr. 147) or to ascertain the basis for a conclusion of law where the conclusion gives no explanation for a ruling (Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 283, 32 Cal.Rptr. 830, 384 P.2d 158).

The memorandum opinion indicates that the trial judge concluded that the testator intended the phrase 'children or issue surviving' 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, * * *.'

The memorandum opinion also discloses that the trial court's conclusion that the testator was familiar with the status of adopted persons was based on the statement in the will that he had adopted his daughter Camille and she in turn had adopted Carol Spear. The opinion also states that the testator evidenced an intention in his will to accept the spirit of section 257 when he chose to accept Carol Spear as though of the blood, 'but overlooked the possibility of 'adopted-out' children.' The basis for the latter conclusion, states the opinion, is to be found in subdivision 'H' of paragraph 'Sixth' of the will which specifically provides 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.'

Victor contends that since the decree of distribution had become final prior to his adoption the court was precluded, in the absence of any contention of ambiguity, from examining the will to determine the testator's intentions. He asserts that since there was no issue before the trial court as to whether the subject decrees of distribution were ambiguous, the decrees are conclusive as to the validity and interpretation of the will, including the rights of beneficiaries. The thrust of Victor's contention is that upon his birth he became a contingent remainderman since at that time he was 'a child' or 'an issue' of Carol Spear under the terms of the trust as spelled out in said decrees. Accordingly, he argues that his subsequent adoption does not defeat his rights as such remainderman. Since both the preliminary and final decree of distribution contain identical language, insofar as the testamentary trust is concerned, we shall hereinafter refer to these decrees collectively as the 'decree.'

Before proceeding to discuss the validity of these contentions we take cognizance of appellant's motion to augment the...