JOHN M. CALLAN, executor & trustee, vs. JAMES G. WINTERS & others [Note 1].

LIACOS, J. The plaintiff, John M. Callan, as executor of the estate of Hattie L. Wilby and trustee of a trust established under her will, brought a complaint for declaratory judgment seeking a determination whether certain adopted children [Note 2] are entitled to share in the distribution of the trust. See Billings v. Fowler, 361 Mass. 230, 233-234 (1972) (complaint seeking declaratory relief may be utilized to same effect as traditional

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petitions for instructions). A judge of probate held that the adopted children are so entitled. The natural child appealed. [Note 3] We transferred the case to this court on our own motion. We reverse.

We summarize the relevant facts. On February 24, 1958, Hattie L. Wilby (testatrix) executed a will in which she left certain property to her niece, Grace L. Stachowiak. The will also established a trust for the remainder of the estate, naming Stachowiak as the sole beneficiary for life. On Stachowiak's death, the will provided that the trust estate be divided in two shares and distributed equally to Charles A. Winters and James G. Winters, the grandnephews of the testatrix, should they survive the life beneficiary, free and clear of all trusts. In the event that one, or both, of her grandnephews predeceased the life beneficiary, the testatrix provided that his share "shall be apportioned for the benefit of the issue then and from time to time living."

One of the grandnephews, Charles A. Winters, predeceased the life beneficiary, dying in 1977. He was survived by Diane Matte, his natural child from his first marriage, his four adopted children (who are the natural children of his second wife), and his second wife. The four children were adopted on November 12, 1976, after the death of the testatrix but before the death of the life beneficiary. The testatrix died on June 1, 1971. Stachowiak, the life beneficiary, died in 1985. [Note 4]

Our task is to determine whether the four adopted children are to be considered "issue" under the will. We note, at the outset, that, since the four children were not adopted until November 12, 1976, they could have no interests which "vested" prior to that date. See Davis v. Hannam, 369 Mass. 26, 31 (1975); Billings v. Fowler, supra at 239-242.

In construing a testamentary instrument, we generally apply "the law in effect at the time of the testator's death." New

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England Merchants Nat'l Bank v. Groswold, 387 Mass. 822, 827 (1983). Davis v. Hannam, supra at 29-30. Boston Safe Deposit & Trust Co. v. Fleming, 361 Mass. 172, 176, appeal dismissed, 409 U.S. 813 (1972). In order to place the law as it stood in 1971 in perspective, we outline the numerous statutory modifications made over the past few decades. [Note 5] From 1876 until August 26, 1958, a testator other than the adopting parent who used the word "child," or its equivalent, was deemed to intend to exclude adopted children unless the intent was otherwise manifested. St. 1876, c. 213, Section 9. [Note 6] In 1958, the Legislature amended the statute so that the word "child" in an instrument would be deemed to include adopted children, whether or not the testator was the adopting parent. G. L. c. 210, Section 8, as appearing in St. 1958, c. 121, Sections 1 and 2. [Note 7]

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The statutory change was to apply only to instruments executed after August 26, 1958, the effective date of the act. Thus, on its face, this statute did not apply to the will of the testatrix, executed in February, 1958.

In 1969, the Legislature further amended the statute, adding more terms which were to be interpreted as including adopted children. St. 1969, c. 27. [Note 8] The 1969 statute made the adoption provision retroactive, regardless of the date of execution of the instrument, except that it excluded from its application any instrument "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. The effective date of the act was September 1, 1969. St. 1969, c. 27, Section 3.

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In 1975, the Legislature amended St. 1969, c. 27, Section 2, repealing its retroactive application and providing that the repeal "shall take effect as of September first, nineteen hundred and sixty-nine." St. 1975, c. 769, Sections 3 and 4. [Note 9] Additionally, the statute's provision that the word "issue" ordinarily shall include adopted children was limited in its application "to grants, trust settlements, entails, devises or bequests, executed after [September 1, 1969]." Thus, again, the will of the testatrix was excluded.

Ordinarily, in determining what was the law at the time of the testatrix's death, it would not be necessary to look to any legislative enactments which transpired after the testatrix's death. We generally apply the law at the time of death, with the understanding that testators have kept abreast of the changes in the law and would make appropriate revisions in their instruments if these changes contravened their original expectations. Here, it may be said, fairly, that the 1975 amendment restored the state of the law, as to the will in issue, in a manner consistent with the law at the time the will was executed. The Legislature, by repealing the retroactive provisions to the 1969 act, and by making this repeal effective as of September 1, 1969, essentially redefined what was the law in effect at the time of the testatrix's death in 1971.

This court must give effect to the Legislature's intent, barring any constitutional impediments. See Nantucket Conservation Found. v. Russell Management, Inc., 380 Mass. 212, 214-215 (1980). There having been raised in this case no constitutional

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challenges to the 1975 amendment, [Note 10] we hold that the 1975 amendment barred the retroactive application of G. L. c. 210, Section 8, to an instrument executed before August 26, 1958, and that, accordingly, the four adopted children are not entitled to share in the distribution of the trust.

Judgment reversed.