H. BURTON POWERS, trustee, vs. ELIZABETH A. STEELE & others. [Note 1]

ABRAMS, J. In this action the trustee of an inter vivos trust seeks a declaration that a child born out of wedlock to the donor's life tenant son, and formally declared legitimate in the

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State of the child's domicil, is the "issue" of the donor and his son for purposes of the trust. The trustee maintains that the child is thus entitled to succeed to the father's interest in the trust. We agree.

The case is submitted on a statement of agreed facts. In April, 1957, the donor established an inter vivos trust providing for payment of income to the donor for life, then to his wife for life, and then to his two sons for their lives. The trust would "terminate upon the death of the survivor of the Donor, said [Donor's wife] and the children of the Donor." On termination, the trustees were to divide the trust "as it shall then exist into equal shares, . . . one share for each deceased child of the Donor having then living issue, and the Trustees shall transfer, pay over and convey one such share by right of representation to the then living issue of each deceased child." [Note 2] The indenture of trust further authorized the trustees "to pay to or for the benefit of the issue of the Donor such amounts of principal as the Trustees may deem necessary for comfort, maintenance, support and education." The trust was "governed by and [was] to be construed and administered according to the laws of the Commonwealth of Massachusetts."

The donor died on June 1, 1961, survived by his wife, since deceased, two sons, and no other issue. The minor was born out of wedlock on February 26, 1977, in New Hampshire. The donor's son had the child's birth certificate amended to include his name as the child's father. On January 30, 1984, a judge of the Superior Court in New Hampshire declared the child "legitimated" under N.H. Rev. Stat. Ann. Section 460:29 (1983). [Note 3]

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The plaintiff began this action in the Probate Court on February 14, 1984. [Note 4] The judge granted the parties' joint motion to report the complaint without decision to the Appeals Court for determination. We allowed the parties' joint application for direct appellate review.

We comment briefly at the outset on the appropriateness of declaratory relief under G. L. c. 231A in this case. The plaintiff asserts that he seeks such relief in order "to determine Grandchild's present status with respect to trust provisions authorizing use of principal for the benefit of the Donor's issue, and the immediate estate planning problems of the acknowledging father dependent upon whether or not Grandchild is a beneficiary of the trust." Indeed, this court has held that just such an "estate planning interest is sufficient to permit declaratory relief, particularly in view of c. 231A, Section 9, requiring that the chapter be `liberally construed,' so as `to remove, and to afford relief from, uncertainty . . . with respect to rights.' " Billings v. Fowler, 361 Mass. 230, 234 (1972). We thus proceed to determine the merits of the plaintiff's claim.

The plaintiff's central thesis is that, because the child is deemed legitimate under the law of the child's domicil, the

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minor must be considered the donor's legitimate issue for purposes of the trust under the law of this Commonwealth. This argument is correct. [Note 5] The plaintiff acknowledges the longstanding presumption that the terms "issue" or "children" as used in a will or trust include only legitimate children, see Fiduciary Trust Co. v. Mishou, 321 Mass. 615, 634-637 (1947). [Note 6] Coupled, however, with this presumption is the fact that "Massachusetts has long followed the rule that the status of a person as to legitimacy is defined by the law of the domicil which creates the status, and Massachusetts will recognize such status unless it is contrary to this Commonwealth's public policies." Fuss v. Fuss (No. 1), 372 Mass. 64, 67 (1977).

The minor was born in New Hampshire and is domiciled there. Her mother and father are residents of New Hampshire. New Hampshire law establishes a procedure whereby the putative father of a child born out of wedlock may petition that the child be declared legitimate. The donor's son complied with that procedure. Thus, the minor is a legitimate child under the law of this Commonwealth.

The guardian ad litem of the minor issue of the donor's nieces and nephew argues that the indenture of trust stated specifically that the construction of the trust was to be determined

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by the laws of Massachusetts. He maintains that the child cannot, therefore, be deemed legitimate for purposes of the trust because the parents have not intermarried as required by Massachusetts law. See G. L. c. 190, Section 7. His argument fails, however, to embrace the longstanding principle that "[t]he lineal descendants of any resident of Massachusetts, according to its law, are those who by the law of the State of their domicil of origin and residence are the legitimate issue of the person. The law of this Commonwealth does not require that the status of a citizen of a foreign jurisdiction as to legitimacy necessarily or commonly must be settled according to the law of Massachusetts upon that subject as to its own citizens, rather than by the law of their own home" (emphasis in original). Green v. Kelley, 228 Mass. 602, 606-607 (1917). The law of Massachusetts encompasses the conflict of laws rule that "legitimacy is to be ascertained by the lex domicilii." Ross v. Ross, 129 Mass. 243, 247 (1880). See Green v. Kelley, supra at 606. We adhere to that rule in this case.

The guardian ad litem for the minor issue of the donor's nieces and nephew further intimates that deference to the law of New Hampshire in these circumstances contravenes the public policy of the Commonwealth. We disagree. "Removal of the obstacles to the legitimation of innocent children, who have no responsibility for the circumstances of their birth, and thus ameliorating some of the apparent harshness of the common law, has been the progressive policy of our law as illustrated by statutes and decisions." Green v. Kelley, supra at 605. Because both the law as well as policy considerations compel the conclusion that the minor is the legitimate issue of the donor, we remand the case to the Probate Court for entry of judgment declaring that the child is the issue of the donor and his son as that term is used in the trust.

So ordered.