Powers v. Wilkinson

• Citation: 399 Mass. 650,506 N.E.2d 842
• Parties: , 55 USLW 2637 H. Burton POWERS, Trustee, v. Margaret K. WILKINSON et al. 1
• Decision Date: 16 April 1987
• Court: United States State Supreme Judicial Court of Massachusetts

Page 842

506 N.E.2d 842

399 Mass. 650, 55 USLW 2637

H. Burton POWERS, Trustee, v. Margaret K. WILKINSON et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Oct. 8, 1986.

Decided April 16, 1987.

H. Burton Powers (Gerald B. O'Grady, III, Boston, with him), for plaintiff.

Paul B. Sargent, Gloucester, guardian ad litem, for the minor defendants and persons unborn or unascertained.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The trustee of an inter vivos trust brought this action in the Probate and Family Court Department for Suffolk County, seeking a declaratory judgment that a child born out of wedlock to the donor's granddaughter is "issue" of the donor's children for purposes of the trust. The nonmarital child remains illegitimate because her paternity has never been acknowledged and her parents have never intermarried. ² The parties named as defendants include all the living beneficiaries of the trust. None has answered, although all have been served with notice. A guardian ad litem (guardian) was appointed to represent the interests of the donor's minor issue, and he has opposed the relief prayed for by the trustee. A guardian ad litem also was appointed to represent the nonmarital child; he has adopted the arguments advanced by the trustee. The parties signed a statement of agreed facts, and the Probate Court judge granted their joint motion pursuant to Mass.R.Civ.P. 64, 365 Mass. 831 (1974), for reservation and report of the case to the Appeals Court. We granted direct appellate review.

The facts agreed are these. On May 7, 1959, the donor established an inter vivos trust that, by its terms, was to be construed according to the laws of the Commonwealth. The trust instrument provided for payment of income to the donor for life, then to her surviving children in equal shares for the duration of their lives, and then to the children's "issue" by right of representation. The indenture of trust also authorized the trustee "to pay to or for the benefit of the children of the Donor and their issue such amounts of principal as the Trustee ... may deem necessary for comfort, maintenance, support and education without reduction of the interest of the recipient in income and principal." The trust is to terminate twenty-one years after the death of the donor's last surviving child, whereupon the trustees are to convey the share of each of the donor's children to that child's issue by right of representation, notwithstanding prior unequal distributions of principal.

The donor died on August 5, 1969. She was survived by one son and two daughters, one of whom still survives, and nine grandchildren, all of whom survive. ³ On July 14, 1973, an unmarried granddaughter of the donor gave birth to a daughter (nonmarital child). The nonmarital child has never been the subject of legitimation, paternity, or adoption proceedings. She has resided with her mother in Vermont, in close proximity to her maternal relatives, who have accepted her as a member of their family circle.

Distributions of principal to the nonmarital child are sought to provide for her support and education. Such distributions were made in the past on joint requests from the child's mother and grandmother, the trustees then being unaware of the child's nonmarital status. ⁴ It is undisputed that the nonmarital child is illegitimate, both by the law of this Commonwealth and by the law of Vermont, the State of her birth and the only domicil she has known.

The trustee advances several alternative arguments in support of the declaration he seeks. ⁵ We discuss each in turn.

1. The donor's intent. "It is fundamental that a trust instrument must be construed to give effect to the intention of the donor as ascertained from the language of the whole instrument considered in the light of circumstances known to the donor at the time of its execution." Groden v. Kelley, 382 Mass. 333, 335, 415 N.E.2d 850 (1981), relying on Dana v. Gring, 374 Mass. 109, 117, 371 N.E.2d 755 (1977), and cases cited. Our review of the trust instrument confirms what is undisputed here, that the instrument itself contains no indication of the donor's intent to use the word "issue" so as to include or exclude nonmarital descendants. Additionally, assuming that evidence of external family circumstances would be competent, we note that the existence of the nonmarital child was not known to the donor at the time she executed the instrument, the child having been born after the donor's death.

In these circumstances, the trustee argues that, absent extrinsic evidence establishing that the donor ascribed a special meaning to the term "issue," her intent "must have been to use [it] in its usual and customary meaning as generally used, meaning biological issue, regardless of legitimacy, 'progeny' or 'offspring,' " citing Webster's New Int'l Dictionary (2d ed. 1947). While we take judicial notice that the dictionary meaning of "issue" does not exclude nonmarital children, and it did not at the time the donor executed her indenture of trust, we know of no legal authority for the proposition that contemporaneous dictionary meanings must be read into the ambiguous words of trust instruments. Additionally, the statutory law of this Commonwealth is not wholly consistent with the dictionary definition of "issue" which the trustee urges upon us. General Laws c. 4, § 7, Sixteenth (1984 ed.), provides: " 'Issue', as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor." ⁶ The common law rule is squarely contrary to the trustee's position. We have stated that "[t]he word issue ... must be interpreted against a background of statutory phraseology and construction which has remained wholly consistent for well over a century." Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 635, 75 N.E.2d 3 (1947). Dealing with the question whether an illegitimate child was included within the expression, "the issue of my deceased children," we stated further: "We can hardly regard this as an open question in this Commonwealth. It cannot be doubted that by the common law of a few generations ago such words as issue, children, descendants, and so forth as descriptive of a class in a grant, devise, or legacy, in the absence of anything indicating a contrary intent, meant only persons of the class who were born in lawful wedlock." Id. at 634, 75 N.E.2d 3. This rule of construction was operative at the time the trust in question was executed, and it concludes the question of the donor's intent. Because nothing indicates an intent by the donor to include nonmarital issue, precedent requires us to presume that the donor intended, in accordance with the law extant at the time the instrument was executed, to exclude nonmarital descendants from the class denoted by her use of the word "issue."

2. Equal protection analysis. The trustee argues that application of the rule of construction stated in Mishou, supra, would violate the rights of the nonmarital child to equal protection of the laws as guaranteed by the Fourteenth Amendment to the Constitution of the United States. ⁷ We disagree.

It is the trustee's contention that the rule of construction as to a donor's intent discriminates against nonmarital children because, taken in tandem with G.L. c. 190, § 7 (1984 ed.) (see note 2 supra ), it impermissibly excludes from trust participation as "issue" all nonmarital children not expressly included unless their parents have intermarried. We do not view this argument as persuasive. The guarantees of the equal protection clause of the Fourteenth Amendment are directed solely to limiting the actions of government. See Commonwealth v. Hood, 389 Mass. 581, 584-586, 452 N.E.2d 188 (1983), and cases cited. The trustee argues, nevertheless, that the rule of construction set forth in Mishou, supra, is subject to scrutiny under the Fourteenth Amendment because the United States Supreme Court has said that "[s]tate action ... refers to exertions of state power in all forms." Shelley v. Kraemer, 334 U.S. 1, 20, 68 S.Ct. 836, 845, 92 L.Ed. 1161 (1948). We do not believe that the holding in Shelley is relevant here. "In Shelley, neighboring property owners sought to enforce a private, racially restrictive agreement to prevent the sale of a house by a white seller to a black purchaser. The Court held that judicial enforcement of the agreement constituted State action." Hood, supra, 389 Mass. at 588, 452 N.E.2d 188. However, "[t]he Supreme Court has not developed Shelley beyond these facts...." Id.

Shelley is inapposite on its facts. In Shelley, the Court had no doubt that State action was involved because it was clear that "but for the active intervention of the state courts, supported by the full panoply of state power, [the black] petitioners would have been free to occupy the properties in question without restraint." Shelley, supra, 334 U.S. at 19, 68 S.Ct. at 845. State action was found because judicial enforcement of the "private law" of restrictive covenants effectively barred blacks from participation in a significant segment of the housing market. In Mishou, the court reaffirmed a definition for a word whose meaning, as judicial experience repeatedly showed, would remain ambiguous without judicial clarification. Under the court's ruling, donors and testators enjoyed freedom to use the word "issue" without explication, confident that we would enforce the instrument containing it to exclude nonmarital children. Similarly, donors have been free to modify the word by stating an additional, contrary intent, in which case we have enforced the instrument to honor that intent. When "issue" is used in a legal instrument, with or without explication, it is the donors and testators who act, not this court nor any other arm of the State. ⁸ Thus, we hold that State action is not involved, nor is the equal protection clause...