Heard's Estate, Matter of
| Decision Date | 21 March 1957 |
| Citation | 308 P.2d 502 |
| Court | California Court of Appeals Court of Appeals |
| Parties | 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. |
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...
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