IN THE MATTER OF WANDA W. JONES.

ABRAMS, J. This case is before us on the reservation and report by a Probate Court judge of certain questions of law arising from a petition by a conservator for approval of an estate plan for his ward under G. L. c. 201, Section 38. [Note 1] The Probate

Page 828

Court judge reserved and reported questions concerning the estate plan to the Appeals Court pursuant to G. L. c. 215, Section 13. [Note 2] We transferred the case to this court on our own motion.

The proposed estate plan principally consists of the creation of two inter vivos trusts: one, a revocable trust, providing for distributions to or for the ward during her life-time from income or principal as necessary or advisable for her health and comfortable support, with remainders to certain charitable organizations; the other, an irrevocable

Page 829

charitable remainder trust which provides for an annual payment to or for the ward, during her lifetime, of an amount equal to nine per cent of the fair market value of the trust assets, determined annually, with remainders to certain charitable organizations. [Note 3]

As we read the judge's reservation and report, three basic questions are presented: (1) whether the creation of revocable and irrevocable trusts specifying the ultimate distribution of trust assets to other than the estate of the ward is the same as making a will; (2) whether G. L. c. 201, Section 38, as amended through St. 1976, c. 515, Sections 25-26, authorizes making a will; and (3) whether the proposed estate plan could be approved in a proceeding in which the Commonwealth's representation may have been neutralized by a conflict of interest, and in which the ward's next of kin were represented by a guardian ad litem for unborn and unascertained heirs. [Note 4] Although not reported by the judge, the parties

Page 830

have also asked whether an estate plan which is found to be in accordance "with the ward's wishes so far as they can be ascertained, although speculative" complies with the requirements of G. L. c. 201, Section 38.

We hold that the proposed estate plan is not a testamentary disposition and is authorized by the statute. Furthermore, we find no infirmities arising from representation of the next of kin by the guardian ad litem or of the Commonwealth by the Attorney General. Finally, we uphold the judge's finding that the estate plan complied with the statutory criteria.

We briefly summarize the evidence presented below and reported by the judge. Wanda W. Jones is a ninety year old woman residing at the McLean Hospital in Belmont. She was found to be incapacitated by reason of advanced age and mental weakness in 1975 conservatorship proceedings. She is mentally incompetent and is unlikely to recover sufficient mental capacity to execute a will.

The conservator was first introduced to the ward in 1950 by her husband, Dr. Stephen G. Jones. The conservator did occasional legal work for Dr. Jones until 1959, when Dr. Jones died. Thereafter the conservator became the ward's attorney. The conservator alleges that to the best of his knowledge, the ward has no husband, issue, or other kindred. On her death, unless it should ultimately prove to be the case that she has a will or next of kin, her estate would pass by escheat to the Commonwealth. The conservator believes his ward never made a will. [Note 5]

In 1968, the conservator drafted a will for the ward under which virtually all her estate would pass to various charities, [Note 6] but she never executed the will. Although the ward

Page 831

refused to sign the will, she never repudiated the dispositive provisions. The ward claimed that she had consulted with unidentified advisors who told her that the will was not properly drafted. [Note 7] There was no evidence as to the ward's competency at the time she refused to sign the will. Although the will was presented to the ward for signature only once, the conservator reminded her of it on several occasions, the last being either in 1974 or 1975. The conservator also testified that the ward made small annual gifts, shown in her tax returns, to the charities named in the draft will; however, no individual charitable gift exceeded seventy-five dollars.

Prior to the hearing on the petition, the judge ordered that notice be given to the Attorney General of the Commonwealth and to the Department of Mental Health, and both filed acknowledgments of notice. The Attorney General's acknowledgment stated that the Attorney General assented to the allowance of the petition. Pursuant to the court order, a notice of the proceedings was also published in a major Boston newspaper once a week for three successive weeks. The judge found that the conservator made no special effort to investigate the possible existence of kindred, but simply relied on his long-standing acquaintance with the ward and her deceased husband, the ward's statements to the conservator and others that she had no relatives, and the failure of any party claiming a relationship to have responded to the newspaper publication of notice in

Page 832

the conservatorship proceedings. [Note 8] In addition, the conservator made inquiries of the ward's brother-in-law, and others who knew her well. All reported that they did not know of any person claiming a relationship to the ward. However, no professional heir search was undertaken.

The court below appointed a guardian ad litem for the ward. The guardian ad litem's report opposed the allowance of the petition in so far as the petition proposed that ninety per cent of the ward's property be transferred to the irrevocable trust and only ten percent to the revocable trust. The guardian ad litem for the ward recommended that fifty per cent of the ward's assets should be transferred to the revocable trust in order to assure the availability of sufficient funds, including principal, for the ward's needs. With that modification, the guardian ad litem for the ward recommended approval of the estate plan as making sufficient provision for the ward's own needs, as being in accordance with the ward's own wishes so far as they can be ascertained, and as reducing prospective State and Federal taxes by a large amount.

The court also appointed a guardian ad litem to represent the interests of the unascertained heirs. He filed a report opposing the allowance of the petition on the ground that heirs who might with reasonable diligence be discovered at the time of the ward's death would be deprived of any rights they might have under the laws governing the estates of deceased persons.

The conservator moved for judgment in accordance with his petition, as modified by the recommendations of the guardian ad litem for the ward. The Probate Court judge declined to issue a judgment but instead reserved and reported

Page 833

certain questions to the Appeals Court. As part of the judge's reservation and report, the judge made the following findings. First, the proposed estate plan, modified as recommended by the guardian ad litem of the ward, includes adequate provision for the ward's own maintenance and support. Second, the estate plan is in keeping with the ward's wishes, so far as they can be ascertained, although speculative, and provides gifts to such charities and friends as would be likely recipients of donations from the ward. Third, the estate plan is designed to minimize in so far as possible current and prospective State and Federal income, estate and gift taxes.

The judge indicated that the plan might be substantially similar to making a will, and therefore not authorized by the statute, G. L. c. 201, Section 38. We do not think the proposed estate plan is objectionable for that reason.

In Strange v. Powers, 358 Mass. 126 (1970), we held that the prior version of Section 38 [Note 9] did not empower the court to approve the making of a will because that would involve "an unduly broad construction of the term `estate plan.'" Id. at 133. We think that the amendment to Section 38 still does not permit a conservator to execute a will on behalf of his ward. The 1976 amendment to Section 38 was largely drawn from Section 5-408 (3) [Note 10] of the Uniform Probate Code, which specifically

Page 834

prohibits the conservator from making a will. We think that our decision in Strange v. Powers, supra, stands unimpaired. The omission of language prohibiting the making of a will from Section 38 is not decisive. "[W]hen the same legislature, in a later statute, use the terms of an earlier one which has received a judicial construction, that construction is to be given to the later statute. . . . For if it were intended to exclude any known construction of a previous statute, the legal presumption is, that its terms would be so changed as to effect that intention." Luacaw v. Fire Comm'r of Boston, 350 Mass. 326, 329 (1966), quoting Commonwealth v. Hartnett, 3 Gray 450, 451 (1855). See Condon v. Haitsma, 325 Mass. 371, 373 (1950).

Moreover, our case law does not support the view that the creation of an inter vivos trust is "the making of a will." In National Shawmut Bank v. Joy, 315 Mass. 457 (1944), the validity of a revocable trust in which the settlor not only created a life interest for himself and another, but also retained a general power of appointment subject to two life estates was upheld despite the argument that the trust was testamentary in nature and did not comply with the statute of wills. "The distinguishing feature of a testamentary disposition is that it remains ambulatory until the death of the one who makes it. Until he dies, his title remains unimpaired and unaffected. . . . If the interest in question passes from the owner presently, while he remains alive, the transfer is inter vivos and not testamentary." Id. at 470-471. Accord, Eaton v. Eaton, 233 Mass. 351, 372 (1919) ("There is nothing essentially testamentary in the act of a man making a present gift of his property to a trustee, reserving income

Page 835

for life to himself with remainder at his death to third persons").

The fact that a certain disposition of property, here the creation of revocable and irrevocable trusts with charitable remainders, is virtually a substitute for a will is unobjectionable. "If an owner of property can find a means of disposing of [the property] inter vivos that will render a will unnecessary for the accomplishment of his practical purposes, he has a right to employ it. The fact that the motive of a transfer is to obtain the practical advantages of a will without making one is immaterial." National Shawmut Bank v. Joy, 315 Mass. at 471.

The amendment to Section 38 grants the ward through a conservator most of the powers that the ward would have if the ward were of full capacity. "[T]he purpose is to carry out the ward's wishes so far as they can be ascertained, and not solely for tax minimization. . . ." Young, Probate Reform, 18 B.B.J. No. 3, 7, 19 (1974). See Newbury, the Uniform Probate Code -- Report of the Boston Bar Association Study Committee, 17 B.B.J. No. 1, 7, 28 (1973); Sherman, Estate Planning by Guardians and Conservators -- G. L. c. 201, Section 38, 63 Mass. L. Rev. 257 (1978); 2 Uniform Probate Code Practice Manual 531-532 (R. Wellman ed. 1977). There is no reason not to allow the ward to use inter vivos trusts in estate planning. Given the legislative policy to carry out "the ward's wishes so far as they can be ascertained," the arguments of the guardian ad litem for unborn and unascertained heirs to the effect that authorization of the estate plan in question will undermine the well-established laws of this Commonwealth governing devolution and descent of property are not persuasive.

The most serious question raised by the reservation and report is the adequacy of the notice by publication to unascertained heirs. [Note 11] Under Section 38, the precise means of notice to

Page 836

interested persons is left to the discretion of the Probate Court judge. Generally, if a court's order for notice pursuant to Section 38 has been followed, any ensuing judgment would bind the party affected. Strange v. Powers, 358 Mass. 126, 135 (1970). The guardian ad litem for persons unborn and unascertained complains that the notice by publication ordered by the court is constitutionally inadequate. We disagree.

Due process permits notice by publication for "[t]hose beneficiaries . . . whose interests or whereabouts could not with due diligence be ascertained." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950). Notice by publication is prohibited "with respect to a person whose name and address are known or very easily ascertainable." Schroeder v. City of N.Y., 371 U.S. 208, 212-213 (1962). Our cases hold that due process "does not demand the impossible. It is impossible to mail a copy of a citation to a person unborn, and as a practical matter it is impossible to mail one to a person whose identity cannot with reasonable diligence be ascertained." Young v. Tudor, 323 Mass. 508, 514 (1948).

The judge found the conservator's belief that his ward had no kindred was based on his thirty-year friendship with the ward (and prior to 1959, with her deceased husband), her frequent statements to him and to others that she had no relatives, the lack of response to the newspaper publication of notice of the conservatorship proceedings, [Note 12] and the lack of any contrary information from the ward's brother-in-law and two of her close friends. The record is clear that the conservator had no actual knowledge of the existence of any heirs, and furthermore, that he possessed no information which, if pursued, might have led to the discovery of kindred. [Note 13] Compare McCabe v. Rourke, 301 Mass. 180 (1938),

Page 837

and Cleaveland v. Draper, 194 Mass. 118 (1907), with Tucker v. Bowen, 354 Mass. 27 (1968), and Welch v. Flory, 294 Mass. 138 (1936).

The question then is whether the conservator is required to retain the services of a professional genealogist in this case. We think not. [Note 14] It is not "unreasonable for the State to dispense with more certain notice to those beneficiaries whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in due course of business come to knowledge of the common trustee. . . . [S]uch impracticable and extended searches are not required in the name of due process." Mullane v. Central Hanover Bank & Trust Co., supra at 317-318. See Lacy v. Fitzpatrick, 54 Cal. App. 3d 172 (1975) (accounting of testamentary trustees, remanded in light of language just quoted from Mullane for factual finding as to reasonable diligence in notifying beneficiaries). See also In re McGarrity, 69 App. Div.2d 819 (N.Y. 1979), where, on evidence very similar to the case at bar, an administrator was allowed to settle the estate of an absentee.

Finally, it is by no means clear that the heirs' participation in the proceedings would affect the outcome. General Laws, c. 201, Section 38, authorizes the conservator to exclude "as a beneficiary any person whom he has reason to believe would be excluded by the ward." Thus, the interest of any person whose existence was unknown to the ward or whose existence she denied in conversations with family and friends is very attenuated. There is no evidence that the ward ever intended to benefit her next of kin.

Page 838

Under similar provisions of North Carolina law, [Note 15] the North Carolina Supreme Court said persons who had a contingent or potential financial interest in the death of the incompetent are limited "to present[ing] to the court facts which will assist the court in determining whether the action proposed by the trustees is detrimental to the estate of the incompetent, or whether the incompetent, if then competent, would probably not act as the trustee proposes to act." In re Kenan, 262 N.C. 627, 638 (1964). In the case at bar, the judge had appointed a guardian ad litem for persons unborn and unascertained, who very ably represented their interests. As a result, it is hard to imagine what further arguments could be presented on their behalf.

The reservation and report raises a question whether the Attorney General's representation of the Commonwealth might have been "neutralized by the conflict between his duty to represent the interests of the Commonwealth and his duty to represent the interests of the public charities." Since the Legislature has determined that the public interest is served by enabling a conservator to dispose of the property of his ward "in keeping with the ward's wishes so far as they can be ascertained" and for tax minimization, G. L. c. 201, Section 38, we find no conflict between the Commonwealth's interest and the Attorney General's position. The decision to assent to the estate plan is well within the authority of the Attorney General. Secretary of Administration & Fin. v. Attorney Gen., 367 Mass. 154, 163 (1975). Accord, Feeney v. Commonwealth, 373 Mass. 359 (1977).

Page 839

We have now disposed of the specific issues raised by the Probate Court judge. The remaining question briefed by the parties is whether an estate plan which is found to accord "with the ward's wishes, so far as they can be ascertained, although speculative" complies with the requirements of G. L. c. 201, Section 38. We also address this issue. See note 2, supra.

The findings of a Probate Court judge will not be overturned unless they are plainly wrong. Williams v. Howard, 330 Mass. 323, 325 (1953). Boston Safe Deposit & Trust Co. v. Lewis, 317 Mass. 137, 140 (1944). In a petition under Section 38, the conservator is not required to prove that a proposed estate plan conforms with absolute certainty to the ward's wishes. The court is merely required to "approve [the estate plan] as being in keeping with the ward's wishes so far as they can be ascertained," and "as designed to minimize insofar as possible current or prospective state or federal income, estate and inheritance taxes." G. L. c. 201, Section 38. The plan may "provide for gifts to such charities, relatives and friends as would be likely recipients of donations from the ward . . . [i.e., those] individuals or charities in which the ward is believed to have an interest." Id.

The guardian ad litem for unascertained heirs argues that the estate plan sought to be established is substantially based on the terms of a will the ward refused to sign. While this is true, the evidence indicated that the will was drafted according to her instructions, instructions which were never changed. The ward continued to make modest annual gifts to the same charitable institutions named in the will. Where the record is not clear as to the ward's wishes, Section 38 creates a presumption that the ward would favor a reduction in estate taxes and a distribution of her estate to achieve that goal. "[T]here is [no] evidence of any settled intention of the incompetent, formed while sane, to the contrary." Estate of Christiansen, 248 Cal. App.2d 398, 423 (1967). Compare In re Turner, 61 Misc. 2d 153 (N.Y. Sup. Ct. (1969) (gifts to three minor children denied where incompetent's will postponed distribution of any portion of his estate

Page 840

until his children reached twenty-five); In re Myles, 57 Misc. 2d 101 (N.Y. Sup. Ct. 1968) (gifts to son and daughter denied pending testimony as to the survival clause in incompetent's will). Although the evidence offered as to the ward's wishes is not conclusive, we cannot say that the Probate Court judge is plainly wrong in finding that the estate plan is "in keeping with the ward's wishes." See G. L. c. 201, Section 38.

We summarize our answers to the questions raised by the judge's reservation and report and by the parties to this proceeding. Under G. L. c. 201, Section 38, the Probate Court has authority to approve the estate plan proposed by the conservator, as modified in accordance with the report of the guardian ad litem for the ward. The findings made by the Probate Court judge relative to this petition are not plainly wrong. The proceedings are not open to attack either because the Commonwealth's interests were inadequately represented or because notice by publication to unknown heirs did not meet due process requirements. Thus, there is no legal impediment to the entry of a judgment approving the proposed estate plan as modified in accordance with the report of the guardian ad litem for the ward.

Since specific questions were reserved and reported, we assume that the Probate Court will consider the proposed estate plan in light of this opinion. See Curran, petitioner, 314 Mass. 91, 94 (1943); G. L. c. 215, Section 13, at note 2, supra.

Report discharged.