NEW ENGLAND MERCHANTS NATIONAL BANK, trustee, vs. MARY ANN GROSWOLD & another [Note 1] (and a consolidated case).

NOLAN, J. This appeal concerns whether the defendant Diane Begin Hebert, the adopted daughter of a beneficiary of two trusts created by Annie Knapp Hardy, is entitled to a share of the distribution of the trust assets. We hold that she is not.

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The pertinent facts are as follows. Annie Knapp Hardy died in 1942. By her will, executed in 1931 and amended by codicils in 1938 and 1939, and by an inter vivos instrument executed in 1938 to be administered in Suffolk County, she created two trusts. The income from these trusts was to be distributed to certain named relatives and, upon the death of the last surviving named beneficiary, the trusts were to be terminated and the assets distributed to their issue. [Note 2] The last income beneficiary died in 1980. The only surviving natural issue are the defendant Mary Ann (Draper) Groswold, who was a grandniece of Annie Knapp Hardy, and her three children. Diane Begin Hebert was adopted as an infant by Edith Hardy Judd, a niece of Annie Knapp Hardy and a named income beneficiary.

In 1981, New England Merchants National Bank, as trustee of both the testamentary trust and the inter vivos trust, filed petitions in the Probate Courts of Essex and Suffolk counties respectively, seeking to distribute the trust assets. Hebert sought to appear in each proceeding to oppose allowance of the petitions and, in each instance, Groswold moved successfully to strike Hebert's appearance. Thereafter, following hearings, judgments were entered ordering the trust assets distributed entirely to Groswold. Hebert appealed both the allowance of the motions to strike [Note 3] and the judgments. We granted her application for direct appellate review of the Essex County matter, transferred the Suffolk County case here on our own motion, and consolidated the two for appeal.

The problem facing Hebert is that from 1876 (St. 1876, c. 213, Section 9) until 1958 (St. 1958, c. 121, Section 1), it was the law

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in this Commonwealth that a testator or settlor who used the word "child" or its equivalent in an instrument intended to include his own adopted children but that a "stranger to the adoption" did not intend to include adopted children by use of those terms. [Note 4] Revised Laws c. 154, Section 8 (1902), later condified as G.L.c. 210, Section 8, representing the substance of the law through 1958, provided that: "The word `child', or its equivalent, in a grant, trust-settlement, entail, devise or bequest shall include a child adopted by the settlor, grantor or testator, unless the contrary plainly appears by the terms of the instrument; but if the settlor, grantor or 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 settlor, grantor or testator to include an adopted child."

Since there is nothing in either instrument which would make it plainly appear that adopted children were to be included as "issue," Hebert cannot take if that law is applicable. This much is settled by our decisions in Davis v. Hannam, 369 Mass. 26 (1975), which held that the adopted granddaughter of a testator who died in 1929 was not entitled to that portion of the testamentary trust income which had been left to her adopted mother and, at her death, to the mother's "issue," and in Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172, appeal dismissed, 409 U.S. 813 (1972), which held that the adopted grandchildren of a testator who died in 1901 were not entitled to share in the distribution of trust assets which were to be paid to the "issue" of testator's daughter after her death. See State St. Bank & Trust Co. v. D'Amario, 368 Mass. 542, 546 (1975); Perkins v. New England Trust Co., 344 Mass. 287 (1962).

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Hebert concedes the steep hill which she must climb and hence the thrust of her argument on appeal is that, in the interests of fairness, we should now give effect to the modern and enlightened policy expressed in the 1958 amendment to G.L.c. 210, Section 8 (St. 1958, c. 121, Section 1), of treating natural and adopted children equally, by retroactively applying that amendment to this case. Hebert contends that such a retroactive application would be constitutionally sound, give adopted children the benefit of subsequent amendments to G.L.c. 210, Section 8, eliminate inherent unfairness in the statute, and harmonize the statute with other laws dealing with inheritance. [Note 5]

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General Laws c. 210, Section 8, as appearing in St. 1958, c. 121, Sections 1, 2, prospectively eliminated the disparate treatment of a child adopted by a testator or settlor and one adopted by others by providing that the word "child," or its equivalent would include all adopted children in any instruments executed on or after August 26, 1958, the effective date of the amendment. [Note 6] Chapter 210, Section 8, was further amended by St. 1969, c. 27, to include more terms which were to be construed as presumptively including adopted children. [Note 7] Chapter 210, Section 8, as then appearing, was made applicable to all instruments, regardless of date of execution, except that it would 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." St. 1969, c. 27, Section 2. In 1975, c. 210, Section 8, was amended once again by St. 1975, c. 769, Sections 3, 4, which repealed the retroactive application of the 1969 amendment and replaced it with a provision making G.L.c. 210, Section 8, applicable only to instruments executed after September 1, 1969.

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In Perkins v. New England Trust Co., 344 Mass. 287, 294 (1962), we held that passage of the 1958 amendment to G.L.c. 210, Section 8, did not impliedly repeal the prior statutory provisions which set forth a rule of construction concerning when adopted children would take. We think that the 1958 amendment, taken together with the amendments in 1969 and 1975, indicates the Legislature's intent to draw 1958 as a bright line for application of G.L.c. 210, Section 8. Cf. Beals v. Commissioner of Corps. & Tax'n, 370 Mass. 781, 784 (1976). Assuming no constitutional impediments, we will not give retroactive effect to the policy of the 1958 amendment in these circumstances. "All of us recognize that there is a natural desire to give effect to the humanitarian legislative policy of St. 1958, c. 121, Section 1... We cannot join, however, in what seems to us a retroactive promulgation of a new and unexpected rule...." Boston Safe Deposit & Trust Co. v. Fleming, supra at 181.

Hebert contends that application of G.L.c. 210, Section 8, as amended by St. 1975, c. 769, Section 3, to the facts of this case would unconstitutionally deprive her of the rights granted her under the 1969 amendment. The short answer to this, of course, is that the law in effect at the time of the testator's death is the applicable law. See Davis v. Hannam, 369 Mass. 26, 29-30 (1975). Even if we were to assume that the 1975 amendment applied to the instruments here at issue, Hebert would gain nothing. The 1969 amendment did not apply to wills or trusts executed before August 26, 1958, to the extent that rights under such wills or trusts had "vested." [Note 8] In Billings v. Fowler, 361 Mass. 230 (1972), we declined to take a technical view of the term "vested" and held instead that the term "contemplates appraisal whether, in substance, the interest is sufficiently established to constitute an interest or right which had accrued to its holder." Id. at 240. Rights which were "not merely inchoate but...vested in the sense that the interests have accrued to [the named beneficiaries], subject only to total or partial defeat by biological

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events," id. at 241, were protected from application of the retroactive provisions. We have consistently applied this nontechnical definition in subsequent decisions. Davis v. Hannam, 369 Mass. 26, 30-31 (1975). State St. Bank & Trust Co. v. D'Amario, 368 Mass. 542, 549, 552 n.10 (1975). Boston Safe Deposit & Trust Co. v. Dean, 361 Mass. 244, 248 (1972). In the present case, Groswold has had a substantial interest in the testamentary trust since 1942 and in the inter vivos trust since 1938. Her interests were subject to defeat only in the event of her predeceasing her mother, her uncle and her two aunts (all named beneficiaries), [Note 9] and were subject to dilution only in the event that one of these persons had other natural children. We think that the interests here were sufficiently "vested" in 1969 to preclude application of the 1969 amendment to them. It follows that Hebert was granted no rights under the 1969 amendment. [Note 10] See Billings v. Fowler, supra at 242. Consequently, the 1975 amendment, which repealed the retroactive application of the 1969 amendment, deprived her of nothing. [Note 11]

The facts that an adopted child would now take under the intestacy laws from his adopted parents but not from his natural parents or kindred (with one exception), G. L.c. 210, Section 7,

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as amended by St. 1975, c. 769, Section 1, and that an adopted child would now take under the lapsed legacy law, G.L.c. 191, Section 22, as amended by St. 1977, c. 76, Section 2, do not create such a conflict with our application of G.L.c. 210, Section 8, here as to warrant our refusing to abide by the unambiguous language of the statute. General Laws c. 210, Section 8, is simply an aid to the construction of wills and trusts (see Beals v. Commissioner of Corps. & Taxation, supra at 784; Perkins v. New England Trust Co., supra at 294), and as such, creates no rights or interests which could possibly conflict, practically or theoretically, with rights or interests granted or denied under other statutes. By will or by specific provisions of an indenture of trust, a person has always been free to avoid application of the intestacy laws or the lapsed legacy law to the distribution of his or her property. These laws serve only to direct the distribution of property in the absence of direction by the owner.

For the above reasons, we conclude that Hebert is not entitled to share in the distribution of the trust assets. [Note 12]

Judgments affirmed.