Elefante v. Newhall

690 N.E.2d 833, 44 Mass. App. Ct. 299
CourtMassachusetts Appeals Court
DecidedFebruary 20, 1998
DocketNo. 95-P-1508
StatusPublished

This text of 690 N.E.2d 833 (Elefante v. Newhall) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elefante v. Newhall, 690 N.E.2d 833, 44 Mass. App. Ct. 299 (Mass. Ct. App. 1998).

Opinion

Armstrong, J.

Alice J. Newhall, the testatrix, had three children, one of whom, a son, Cheever Newhall, had three biological children.3 On April 1, 1968, she executed a will by which, in Article Fourth, she devised her seventy-acre vacation property in New Hampton, New Hampshire, in trust for the benefit of those three grandchildren, designated by name. In Article Fifth she gave her residuary estate in trust for the benefit [300]*300of her “issue,” in language set out in the margin.4 Cheever New-hall married his third wife in 1971, and on November 30 of that year he adopted her two sons, Mark and Michael, who were then fifteen and seventeen years old, respectively. Alice Newhall died in 1972.5 After the death of Cheever (senior) in 1993, the trustees under the will of Alice J. Newhall sought instructions whether the two adopted sons, Mark and Michael, were to share the income distribution to “issue” under Article Fifth. From a decree ruling that the adopted sons were not entitled to share in the income distribution with Cheever’s three biological children, Mark and Michael appealed.

When Alice J. Newhall executed her will in 1968, the law governing the rights of adopted children was G. L. c. 210, § 8, as it had been amended by St. 1958, c. 121, § 1. Prior to the 1958 amendment, § 8 established a presumption that adopted children of the testatrix were included in a devise or bequest to “ ‘children]’ or [the] equivalent,” but children adopted by one other than the testatrix were not so included. Under that “stranger to the adoption” principle, added in 1876,6 Mark and Michael, because they had been adopted by Cheever, not by Alice, the testatrix, would be presumed not to be included in a [301]*301bequest by Alice to Cheever’s “children,” by that term or any equivalent. New England Merchs. Natl. Bank v. Groswold, 387 Mass. 822, 824 (1983).

The 1958 amendment abolished the stranger to the adoption rule, effective August 26, 1958. Davis v. Hannam, 369 Mass. 26, 29-30 (1975). Applicable (by § 2 of the 1958 statute) to wills executed after the statute’s effective date, the 1958 act amended § 8 to read:

“The word ‘child,’ or its equivalent, in a grant, trust, settlement, entail, devise or bequest shall include an adopted child to the same extent as if bom to the adopting parent or parents in lawful wedlock unless the contrary plainly appears by the terms of the instrument.”

Alice’s will, because it was executed after the effective date of the 1958 statute, would be deemed to include the adopted children of her descendants, just as if they had been bom in lawful wedlock, in any provision of her will using the general term “child” or its equivalent, unless the contrary plainly appeared.

It was, in our view, clear beyond reasonable dispute in 1968, when Alice executed her will, that the word “issue,” used in Article Fifth, was the equivalent of the word “child,” so as to carry the presumption established by the 1958 statute. The opening words of G. L. c. 210, § 8 — “The word ‘child,’ or its equivalent, in a . . . devise or bequest” — were left unamended by the 1958 statute and had, prior to its passage, been judicially construed to include the word “issue.” In Wyeth v. Stone, 144-Mass. 441, 443-444 (1887), the court, construing those words, said:

“We think the intention was to provide, that if, by a settlement, deed, or will, property is given by terms which embrace and include a child bom in wedlock, and which, in their application to existing facts, have the same effect and mean the same thing as child or children, such as the terms ‘issue,’ ‘descendant,’ or ‘heir at law,’ the rules provided by this- section shall apply in the construction of the instrument. Any other construction would give the statute a very narrow scope, and to a great extent defeat its purpose.”

The same construction — that “issue” when used in application [302]*302to child or children, included adopted children — was followed in Buckley v. Frasier, 153 Mass. 525, 527-528 (1891). Two decisions by New York courts, called upon to determine whether the word “issue” included adopted children under Massachusetts law, treated the question as settled by G. L. c. 210, § 8, Wyeth v. Stone, and Buckley v. Frasier in favor of inclusion. In re Vail’s Estate, 200 Mise. 1032, 1036 (N.Y. Surr. Ct. 1951) . In re Cheney’s Estate, 109 N.Y.S.2d 704, 706 (Sup. Ct. 1952) .7 All of these decisions, of course, because written before the 1958 amendment, treated “issue” as including adopted children only when they had been adopted by the testator or testatrix; but the point is that, when the word “issue” was used in a context that denoted the children of the testator or testatrix, the word “issue” was treated as equivalent to the word “child” so as to include adopted children in accordance with the 1876 statute.

Thus, when the 1958 statute amended G. L. c. 210, § 8, to abolish prospectively the stranger to the adoption rule, the subject of the sentence — “The word ‘child,’ or its equivalent, in a . . . devise or bequest” — left unchanged from the 1876 statute, must be read as having carried the same meaning as it carried in the 1876 statute, that is, as including the word “issue” when used in reference to the children of the testator or testatrix or (as amended in 1958) of the testator’s or testatrix’s lineal descendants. It cannot reasonably be contended that the Legislature in 1958, when it left those words unaltered, intended to narrow their judicially approved meaning, so as to exclude the word “issue” from the connotation of the words, “ ‘child,’ or its equivalent.” Thus, when Alice Newhall executed her will in 1968, as well as her codicil in February, 1969 (see note 4, supra), her gift to her “issue” in Article Fifth must be read as having included any adopted children of her son Cheever, as if they were Cheever’s biological issue. Although Mark and Michael were not adopted until two years later, and thus, we assume, were not within Alice’s comprehension when she executed the will, the word she used, “issue,” would pick up [303]*303children later adopted by one of her children, exactly as it would pick up any later-bom biological grandchildren.

By St. 1969, c. 27, § 1, effective (by § 3) on September 1, 1969, the Legislature undertook to broaden the rights of adopted children by making the 1958 abolition of the stranger to the adoption rule apply retroactively, except where interests or rights had vested prior to September 1, 1969.8 In the course of doing so, the subject of the operative sentence, as worded in 1876 and 1958, was amplified to read: “The words ‘child,’ ‘grandchild,’ ‘issue,’ ‘heir’ or ‘heir-at-law,’ or their respective equivalents, in a . . . devise or bequest . . . .” This change of wording represented, in our view, a possibly inartful attempt to incorporate in the wording of § 8 the broad connotation that had consistently been given to the phrase, “ ‘child,’ or its equivalent,” since Wyeth v. Stone in 1887. The 1969 amendment has been so treated (i.e., as a clarifying amendment) in commentaries. See, e.g., Newhall, Settlement of Estates and Fiduciary Law in Massachusetts § 24.14, at 59-60 & n.81 (5th ed. 1997).

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Related

New England Merchants National Bank v. Groswold
444 N.E.2d 359 (Massachusetts Supreme Judicial Court, 1983)
Foley v. Evans
570 N.E.2d 179 (Massachusetts Appeals Court, 1991)
Callan v. Winters
534 N.E.2d 298 (Massachusetts Supreme Judicial Court, 1989)
Boston Safe Deposit & Trust Co. v. Fleming
279 N.E.2d 342 (Massachusetts Supreme Judicial Court, 1972)
Boston Safe Deposit & Trust Co. v. Dean
279 N.E.2d 902 (Massachusetts Supreme Judicial Court, 1972)
Davis v. Hannam
336 N.E.2d 858 (Massachusetts Supreme Judicial Court, 1975)
Buckley v. Frasier
27 N.E. 768 (Massachusetts Supreme Judicial Court, 1891)

Cite This Page — Counsel Stack

Bluebook (online)
690 N.E.2d 833, 44 Mass. App. Ct. 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elefante-v-newhall-massappct-1998.