Otis, Justice.
This is an appeal from an order of the district court construing a trust instrument
to exclude an adopted child of the life tenant from sharing in the distribution to remaindermen. The facts are not in dispute. The only issue is the construction of the following language:
“* * * [T]he trustees agree to hold, * * * for the benefit of donor’s son, Willis Vanderhoef Nash, the latter’s daughters, Helen Lora Nash and Patricia Nash,
and any other issue of said son who may hereafter be born.
“* * * At the death of said son, if he is survived by child or the issue of a deceased child, all the trust property * * *
shall be divided into as many equal funds as there may be children of said son surviving him,
* * *. Each of said funds shall then be held' and managed separately for the respective beneficiaries; and the principal shall be distributed at the times and in the amounts following, to-wit:” (Italics supplied.)
At the time the trust was executed on August 5, 1939, settlor’s son, Willis Vanderhoef Nash, was having marital difficulty which resulted in divorce. On April 8, 1958, he legally adopted two stepchildren of a third marriage, appellant, Robert Lake Nash, born after the creation of the trust, and Margaret Leann Nash, bom prior thereto. Margaret predeceased Willis Vanderhoef, who died on July 24,1961.
The trustees in their petition allege as follows:
“It is not clear from the trust instrument whether or not Robert Lake Nash as an adopted son of Willis Vanderhoef Nash is included as a child of said Willis Vanderhoef Nash for the purpose of dividing the trust estate into separate funds for the children of said Willis Vanderhoef Nash upon the latter’s death.”
The petition concludes with a prayer for instructions as to whether the adopted child of Willis Vanderhoef Nash is included in the terms of the trust instrument.
The trial court held that in dividing and distributing the trust estate the trustees should construe the term “child” to exclude Robert Lake Nash. In a memorandum made a part of the order, the court based its decision on what appeared to it to be an intention to benefit only natural children because of the phrase “who may hereafter be bom.” The court felt it was significant that the instrument was executed during a period when the life tenant’s marriage was unstable and that it indicated a purpose to exclude anyone who might be a stepchild by a subsequent marriage. In addition, the court pointed out the capricious and arbitrary result of construing the instrument to include appellant, born after the trust was created, but to exclude his sister who was bom prior to it.
As we view the issues, we must determine whether the testator’s intention is made clear by the trust instrument and the circumstances surrounding its execution, and, if not, what principles of law apply as a matter of policy.
1. If testator has expressed any intention with respect to the inclusion or exclusion of adopted children it must be found in the two phrases, “any other issue of said son who may hereafter be bom,” and “all of the trust property * * * shall be divided into as many equal funds as there may be children of said son surviving him.” At the time this trust was created the statute governing the effect of adoption, Mason St. 1927, § 8630, contained the following language:
“Upon adoption such child shall become the legal child of the persons adopting him, and they shall become his legal parents, with all the rights and duties between them of natural parents and legitimate child.”
Notwithstanding the statement of policy contained in that statute, the intention of a testator or settlor continues to govern the disposition of his estate if it can be discovered.
No case has been called to our attention in which the precise language of this trust has been construed. We have noted that every testator’s circumstances and plan of disposition is unique, that “no will has a brother,”
and therefore precedents are of no great value.
In the case of In re Trust Under Will of Holden, 207 Minn. 211, 291 N. W. 104, this court laid to rest the question of whether the word “issue” includes adopted children of a life tenant by holding that it did.
What remains to be resolved is whether settlor Willis K. Nash, whose trust was created prior to the Holden decision, indicated any different intention. The fact appellant was bom after the creation of the trust is not in itself significant. If the settlor gave the matter any thought, it was
the relationship of parent and child, and not the date of birth, which presumably concerned him. The parties draw divergent inferences from the fact settlor had an adopted child of his own with whom he apparently enjoyed close family ties and for whom he made provision in his will.
The language of the trust instrument, which requires the estate to be divided into as many funds as there are children of the life tenant, lends support to appellant’s position that no discrimination against adopted children was intended. We have indicated that, absent clear expression to the contrary, the word “children” includes adopted children.
Respondents cite a number of cases from other jurisdictions which deserve comment.
In Third Nat. Bank & Trust Co. v. Davidson, 157 Ohio St. 355, 363, 105 N. E. (2d) 573, 577, the question was whether “grandchildren, * * * born prior or subsequent to” settlor’s death, included adopted children. The court held that obviously no adoptee could at birth be settlor’s grandchild and hence could not be included as a beneficiary. In reaching this result the court reversed the trial court and an intermediate appellate court and provoked a dissent from the chief justice, who felt the statute should be liberally construed to give equal status to adopted children.
Wachovia Bank & Trust Co. v. Green, 239 N. C. 612, 614, 80 S. E. (2d) 771, 773, construed an instrument making provision for “any child * * * hereafter bom to either my said niece or my said nephew” to exclude adopted children. Whether or not we ultimately choose to follow Wachovia in a similar fact situation, we believe that the circumstances here present compel a finding that the expression “born to” distinguishes that case from this.
A case more nearly in point is Vaughn v. Vaughn, 161 Tex. 104, 337 S. W. (2d) 793. The settlor there provided that a trust should be established for any child of his son bom after settlor’s death. Again, both the trial court and an intermediate court were reversed.
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Otis, Justice.
This is an appeal from an order of the district court construing a trust instrument
to exclude an adopted child of the life tenant from sharing in the distribution to remaindermen. The facts are not in dispute. The only issue is the construction of the following language:
“* * * [T]he trustees agree to hold, * * * for the benefit of donor’s son, Willis Vanderhoef Nash, the latter’s daughters, Helen Lora Nash and Patricia Nash,
and any other issue of said son who may hereafter be born.
“* * * At the death of said son, if he is survived by child or the issue of a deceased child, all the trust property * * *
shall be divided into as many equal funds as there may be children of said son surviving him,
* * *. Each of said funds shall then be held' and managed separately for the respective beneficiaries; and the principal shall be distributed at the times and in the amounts following, to-wit:” (Italics supplied.)
At the time the trust was executed on August 5, 1939, settlor’s son, Willis Vanderhoef Nash, was having marital difficulty which resulted in divorce. On April 8, 1958, he legally adopted two stepchildren of a third marriage, appellant, Robert Lake Nash, born after the creation of the trust, and Margaret Leann Nash, bom prior thereto. Margaret predeceased Willis Vanderhoef, who died on July 24,1961.
The trustees in their petition allege as follows:
“It is not clear from the trust instrument whether or not Robert Lake Nash as an adopted son of Willis Vanderhoef Nash is included as a child of said Willis Vanderhoef Nash for the purpose of dividing the trust estate into separate funds for the children of said Willis Vanderhoef Nash upon the latter’s death.”
The petition concludes with a prayer for instructions as to whether the adopted child of Willis Vanderhoef Nash is included in the terms of the trust instrument.
The trial court held that in dividing and distributing the trust estate the trustees should construe the term “child” to exclude Robert Lake Nash. In a memorandum made a part of the order, the court based its decision on what appeared to it to be an intention to benefit only natural children because of the phrase “who may hereafter be bom.” The court felt it was significant that the instrument was executed during a period when the life tenant’s marriage was unstable and that it indicated a purpose to exclude anyone who might be a stepchild by a subsequent marriage. In addition, the court pointed out the capricious and arbitrary result of construing the instrument to include appellant, born after the trust was created, but to exclude his sister who was bom prior to it.
As we view the issues, we must determine whether the testator’s intention is made clear by the trust instrument and the circumstances surrounding its execution, and, if not, what principles of law apply as a matter of policy.
1. If testator has expressed any intention with respect to the inclusion or exclusion of adopted children it must be found in the two phrases, “any other issue of said son who may hereafter be bom,” and “all of the trust property * * * shall be divided into as many equal funds as there may be children of said son surviving him.” At the time this trust was created the statute governing the effect of adoption, Mason St. 1927, § 8630, contained the following language:
“Upon adoption such child shall become the legal child of the persons adopting him, and they shall become his legal parents, with all the rights and duties between them of natural parents and legitimate child.”
Notwithstanding the statement of policy contained in that statute, the intention of a testator or settlor continues to govern the disposition of his estate if it can be discovered.
No case has been called to our attention in which the precise language of this trust has been construed. We have noted that every testator’s circumstances and plan of disposition is unique, that “no will has a brother,”
and therefore precedents are of no great value.
In the case of In re Trust Under Will of Holden, 207 Minn. 211, 291 N. W. 104, this court laid to rest the question of whether the word “issue” includes adopted children of a life tenant by holding that it did.
What remains to be resolved is whether settlor Willis K. Nash, whose trust was created prior to the Holden decision, indicated any different intention. The fact appellant was bom after the creation of the trust is not in itself significant. If the settlor gave the matter any thought, it was
the relationship of parent and child, and not the date of birth, which presumably concerned him. The parties draw divergent inferences from the fact settlor had an adopted child of his own with whom he apparently enjoyed close family ties and for whom he made provision in his will.
The language of the trust instrument, which requires the estate to be divided into as many funds as there are children of the life tenant, lends support to appellant’s position that no discrimination against adopted children was intended. We have indicated that, absent clear expression to the contrary, the word “children” includes adopted children.
Respondents cite a number of cases from other jurisdictions which deserve comment.
In Third Nat. Bank & Trust Co. v. Davidson, 157 Ohio St. 355, 363, 105 N. E. (2d) 573, 577, the question was whether “grandchildren, * * * born prior or subsequent to” settlor’s death, included adopted children. The court held that obviously no adoptee could at birth be settlor’s grandchild and hence could not be included as a beneficiary. In reaching this result the court reversed the trial court and an intermediate appellate court and provoked a dissent from the chief justice, who felt the statute should be liberally construed to give equal status to adopted children.
Wachovia Bank & Trust Co. v. Green, 239 N. C. 612, 614, 80 S. E. (2d) 771, 773, construed an instrument making provision for “any child * * * hereafter bom to either my said niece or my said nephew” to exclude adopted children. Whether or not we ultimately choose to follow Wachovia in a similar fact situation, we believe that the circumstances here present compel a finding that the expression “born to” distinguishes that case from this.
A case more nearly in point is Vaughn v. Vaughn, 161 Tex. 104, 337 S. W. (2d) 793. The settlor there provided that a trust should be established for any child of his son bom after settlor’s death. Again, both the trial court and an intermediate court were reversed. The Texas Supreme Court was of the opinion that since the trustees could not establish a trust as soon as an adopted child was bom as required by the
trust instrument, it was not settlor’s intent to benefit a child bom to a stranger. In addition, the settlor had specifically provided for adopted children by the terms of other trust instruments. The court relied for support on the Wachovia Bank and Davidson cases.
Authority cited by respondents which limits beneficiaries to “issue of the body” clearly does not apply.
Taking the trust instrument by its four corners, and having in mind the extrinsic evidence of the circumstances which respondents contend prompted its execution, we are unable to find any persuasive motive or language which militates in favor of an intention to exclude from its benefits adopted children of the life tenant.
While it may be argued that settlor could have expressly included adopted children had it been his desire to provide for them, an equally valid argument may be advanced that he apparently entertained no aversion to adoption, since his own experience was successful, and it would have been a simple matter to restrict beneficiaries to blood relations had it been his purpose to> do so.
In our opinion, the proof with respect to settlor’s intent reposes on dead center. The circumstances are “neutral.”
Neither party has succeeded in convincing us of what the settlor had in mind. The New York
court, speaking through Mr. Justice Cardozo, addressed itself to a similar dilemma in New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 108, 142 N. E. 431, 434, 31 A. L. R. 791, 798, as follows:
“* * * * The rule thus emerges that in the absence of clear tokens of a contrary intention, the statute is to be taken as the standard of division * * *. The acceptance of this formula supplies a test of simple application. A testator is still free, if he pleases, to direct division upon other lines. Often it will happen that he has no intention one way or the other. * * *
“* * * In all likelihood, he simply failed to think the subject through. We find no reason for supposing that he had any intention either way except the general one that his words should be interpreted in conformity with law. The question in such circumstances is one not of intention in the proper sense, but of the legal implications of one formula or another.”
2. Faced with the inconclusive evidence we find in this record, we feel compelled to resort to the presumption applied in In re Trust Created by Will of Patrick, 259 Minn. 193, 199, 106 N. W. (2d) 888, 892. Where a purpose to grant or withhold benefits with respect to adopted children is not clear, we hold that the settlor is presumed to intend that adopted children be included within the category of issue of a life tenant “who may hereafter be bom.” Stated differently, one who seeks to exclude adopted children from the benefits of such a trust has the burden of proving by a fair preponderance of the evidence that this was what settlor had in mind.
The common law did not recognize adoption as a legal relationship, and a number of states reflect its traditional reluctance to accord strangers to the blood equal status with heirs of the body. However, it is clear that this state has by statute and judicial decision assumed a more liberal attitude. The forbearance, affection, and respect which characterize the relationship of a mutually devoted parent and child are fostered more by the intimate experiences of daily life which they share together than by the accident of common biological origin.
We therefore conclude that settlor, Willis K. Nash, used no expression indicative of his attitude toward adopted children of his son, Willis Vanderhoef Nash. He very likely gave the matter no thought. The phrase “hereafter bom” was obviously intended to include those who might become children of the life tenant before the termination of the trust. It does not, in our opinion, negative the possibility of adopted children. In dividing the trust for distribution to remaindermen, settlor designated them only as “children” of his son. We cannot assume he and his attorneys were wholly oblivious to the laws of adoption when they drafted the trust instrument.
Settlor having at most shown an
indifference to their effect, we are not prepared to say that considerations of public policy require us to find settlor entertained a conscious purpose to exclude adopted children. The reasoning and philosophy expressed by the legislature and the courts in this state require a contrary conclusion.
We therefore hold that Robert Lake Nash is by adoption the issue of Willis Vanderhoef Nash, entitled to share equally with Helen Nash Schermerhorn and Patricia Nash Carson in the distribution of the remainder interest of the trust created’ by Willis K. Nash on August 5, 1939.
Reversed.
Mr. Justice Sheran, not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.