J. WINTHROP DAVIS & another, trustees vs. BETTY CHARLESWORTH HANNAM & others.

HENNESSEY, J. The petitioners, J. Winthrop Davis and The First National Bank of Boston, as trustees under the will of Charles Davis, brought this suit in the Probate Court seeking instructions concerning whether and to what extent Betty Charlesworth Hannam, the adopted granddaughter of the testator Charles Davis, and other adopted issue of the testator are entitled to share in the current trust income and are to be regarded as beneficiaries under the will. Two guardians ad litem were appointed, one to represent the interests of what may conveniently be called the "biological issue" of Charles Davis, and one to represent the interests of the "adopted issue" of the testator. A judge of the Probate Court, without decision, has reported the case with a statement of agreed facts for a determination of the questions raised by the petition.

Charles Davis, late of Milton, Massachusetts, executed a will on September 23, 1926. The will was republished in three subsequent codicils, dated September 26, 1927, April 3, 1929, and July 10, 1929, respectively. The testator died on December 26, 1929, survived by four biological children, Pauline, Suzette, J. Winthrop and Reginald, and by one adopted daughter, Elinor. Only J. Winthrop and Reginald are still alive.

The petition for instructions in this case is concerned solely with that portion of the trust income left to the testator's daughter, Pauline. Under art. V, 2 (1), the testator provided that Pauline was to receive a yearly

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income of $10,000 under the trust. The will further provided that on Pauline's death the trustees were to pay one-half of the annual income (i.e., $5,000) to those designated by Pauline pursuant to a testamentary power of appointment granted to her in the will. [Note 1] The balance of the $10,000 annual income not payable in accordance with the exercise of the power of appointment was to be paid "to the issue of my said daughter, Pauline, if any, from time to time living, by right of representation, until the time fixed for the termination of the trust under this Article of my will, or until the death during the continuance of the trust of the last to die of the issue of my said daughter, whichever is the earlier." Article V, 5 (1) and (2), as amended by the third codicil, provided for the disposition of the remainder of the trust income to several designated beneficiaries and is set forth below. [Note 2]

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The testator's daughter, Pauline, died on March 17, 1971, leaving only an adopted daughter, Betty. Although Pauline had never had any biological children, by a decree dated July 10, 1946, of the Surrogate's Court for Nassau County, New York, Pauline, who was then fifty-eight years of age, and her husband adopted Betty, who was then thirty-eight years of age. At the time of the adoption, Betty had two biological children, Mary Hope Balfour Hichisson and John Michael Watkins Hannam. Both Betty and her two children are still alive.

The question for our decision is whether Pauline's adopted daughter should be considered "issue" and thus entitled to the balance of the $10,000 yearly income (i.e., $5,000) not payable pursuant to the exercise of the testamentary power of appointment given to Pauline under the testator's will. Necessarily, a resolution of this question will be determinative as to the rights of other adopted issue, present and future, under the testator's will. [Note 3]

The law at the date of the testator's death applicable to the present case was G. L. c. 210, Section 8, which provided: "The word `child', or its equivalent, in a . . . devise or bequest shall include a child adopted by the . . . testator, unless the contrary plainly appears by the terms of the instrument; but if the . . . testator is not himself the adopting parent, the child by adoption shall not have, under such instrument, the rights of a child born in lawful wedlock to the adopting parent, unless it plainly appears to have been the intention of the . . . testator to include an adopted child." In 1958, c. 210, Section 8, was

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amended by St. 1958, c. 121, Section 1, to eliminate the distinction between a child adopted by the testator and one adopted by others -- in either case "child" was to include an adopted child absent a contrary intention. However, St. 1968, c. 121, Section 2, limited the application of Section 1 to instruments executed after the effective date of the amendment, August 26, 1958. Chapter 210, Section 8, was again amended by St. 1969, c. 27, Section 1, which is set out in the margin. [Note 4] These statutes have been discussed extensively in Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172 (1972), Billings v. Fowler, 361 Mass. 230 (1972), Boston Safe Deposit & Trust Co. v. Dean, 361 Mass. 244 (1972), and State Street Bank & Trust Co. v. D'Amario, 368 Mass. 542 (1975).

It is not disputed that the 1958 amendment is inapplicable in the present case, for that amendment was to have prospective effect only, applying to instruments executed after August 26, 1958. Boston Safe Deposit & Trust Co. v. Fleming, supra at 178. Perkins v. New England Trust Co., 344 Mass. 287, 294 (1962). In this case the will was executed in 1926, republished by a third and last codicil on July 10, 1929, and the testator died on December 26, 1929.

It is also clear that Section 1 of the 1969 amendment does not help the petitioners, since the Section 2 proviso to that amendment states that the Section 1 rule should not apply to any grant or devise "which was executed or effective prior to . . . [August 26, 1958] with respect to any interests or right therein which had vested prior to the effective date of this act," i.e., September 1, 1969. In

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deciding whether interests or rights had vested within the meaning of the Section 2 proviso, our court concluded in Billings, supra, that the amendment "cannot fairly be viewed as adopting technical concepts whether an interest is vested or contingent." 361 Mass. at 240. It is sufficient if the interests or rights had "accrued . . . subject only to total or partial defeat by biological events." Id. at 241. Under the reasoning of Billings, each of the testator's four biological children in the present case acquired a vested interest in the remaining income on the testator's death in 1929 and the biological issue of the testator's biological children born prior to September 1, 1969, acquired a vested right at his or her birth. These interests could only be defeated by the birth of biological issue of Pauline, an impossibility in 1969 since Pauline was in her early eighties. In addition, the residuary interests of the testator's biological issue would be reduced, if not eliminated, by the inclusion of adopted issue. See D'Amario, supra at 549-550. Accordingly, the interests or rights of the testator's biological issue born prior to September 1, 1969, had vested in the sense of the 1969 proviso.

Turning to the question whether under the law as it existed prior to 1958 the testator's adopted issue should be considered "issue" under the will, it cannot be said that it plainly appears that the testator had an intention that adopted children be included as beneficiaries. Counsel for the "adopted issue" argues that since the testator in art. V specifically excluded his own adopted daughter, Elinor, and her issue, [Note 5] it can be inferred that it was his intention to include adopted issue wherever not expressly excluded. This argument ignores the statutory language of G. L. c. 210, Section 8, which excludes adopted children unless "it plainly appears to have been the intention of

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the . . . testator to include an adopted child." There is nothing to show that the testator contemplated that his daughter Pauline might adopt a child; in fact Pauline did not adopt Betty until almost seventeen years after his death. See Hutchins v. Browne, 253 Mass. 55, 58 (1925); Wyeth v. Stone, 144 Mass. 441, 444 (1887). The testator executed his will, apparently with assistance of counsel, and it would not be unreasonable to assume that the testator was familiar with the law governing adopted issue, which had been in effect since 1876, and that if he had wished to include adopted issue he would have done so in accordance with the law. See cl. 5 in n.2 supra.

In light of the foregoing, we answer the specific questions propounded to us by the report as follows: (1) the word "issue" as used in art. V of the testator's will does not include adopted issue and (2) the balance of the $10,000 annual income (i.e., $5,000) not payable pursuant to the exercise of the general testamentary power of appointment should be presently payable in accordance with art. V, 5 (1) and (2), as amended by the third codicil, until the expiration of the trust as provided for by art. V, 7.

The case is remanded to the Probate Court for further proceedings consistent with this opinion. Costs and expenses are to be in the discretion of the Probate Court.

So ordered.