Estate of JANE L. STANFORD, Deceased. BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY et al., Appellants, v. AIMEE G. REYNOLDS et al., Respondents, 49 Cal. 2d 120

CARTER, J. These are appeals from a decree settling the final account and distributing the property of the estate of Jane Stanford who died testate in 1905. By her will, dated July 28, 1903, decedent bequeathed $2,000,000 in trust to the Union Trust Company (now Wells Fargo Bank) as trustee, as follows:

(1) The net income of one-half thereof to be paid her brother Ariel Lathrop during his life. The trust was to cease upon his death and the corpus thereof was to belong to and be delivered to his named relatives.

(2) To pay to her niece, Jennie Lawton, the net income from one-third of the other half for her lifetime and “upon her death [the] trust shall cease” and one-third of the corpus “shall belong and be delivered to the child or children of” Jennie.

(3) The same provision was made as to her niece, Amy Hansen, as to one-third of the half.

(4) The net income from the remaining one-third was to be paid to Daniel and Amy Gunning, children of decedent’s deceased niece, Christine Gunning, until they reached a certain age when the corpus was to go to them, but if either died before attaining the specified age, then to the children of the one dying. Thereafter gifts were made to various persons.

The residue was bequeathed to Stanford University and provision was made for $100 to any contestant who attempted to impair, invalidate or set aside the will and any amount such contestant would have received, except for the contest, was to go to Stanford University, the residuary legatee.

Probate proceedings were commenced and on April 6, 1906, a decree of partial distribution was rendered ordering “that there be distributed to the respective legatees . . . upon their respective legacies the following respective amounts, namely: To the Union Trust Company [the trustee named in the will] $1,900,000 in trust and upon the trusts provided for by” her will “said trusts being expressed in said will as follows.” Then followed the exact wording of the will above mentioned. On May 1, 1908, the court decreed the settlement of the third and final account and ordered final distribution.

The decree recited that all legatees had been paid their legacies in full, with the exception of Stanford University, and ordered all the rest and remainder of the estate known or unknown to be delivered to Stanford University. Jennie Lawton ((2) above) had one child, Daniel, who died in 1926, before the death of his mother, bequeathing his interest in the estate to his mother, Jennie.

Shortly thereafter Jennie died and on October 7, 1927, the court decreed that on Jennie’s death the trust had ended and ordered that the corpus of the trust be delivered to Jennie’s executor, stating that in its “opinion” the interest of Daniel “vested” upon the death of the testatrix. Stanford University appealed but the appeal was dismissed on stipulation. Amy Hansen ((3) above) had one natural child, Walter, who died in 1918 before his mother, bequeathing his estate to Ruth Barton.

In 1924, Amy Hansen adopted as her children, by proceedings in a New York court, Aimee Gunning Reynolds, an adult, and her two children, Aimee Rochester, now Muniz, and Minnie Rochester. Amy Hansen died in 1954, leaving surviving her the persons she had adopted.

The court decreed that all the remaining corpus of the trust be distributed to the adopted persons, Aimee Reynolds, Minnie Rochester and Aimee Muniz, finding that the trust as to (1), (2) and (4) had terminated and the remainder interests had been distributed; that Ruth Barton, the successor of Walter, the son of Amy Hansen, should receive nothing as Walter had predeceased his mother. Ruth Barton and Stanford University appeal.

Ruth Barton contends that the interest of Walter passed to her although he predeceased his mother, Amy Hansen, the life tenant of the property, because the remainder was vested when the testatrix, Jane Stanford, died; that the decrees in 1906 and 1908 distributing the property so construed the testatrix’ will; that the 1927 decree with respect to Jennie Lawton, which determined that the interest of the remainderman, Daniel, passed to his legatee, Jennie, although he died before the life tenant, Jennie, is res judicata as to Stanford University.

Thus the main question presented is whether the remainder to Walter was vested as to title in him at the death of the testatrix with the right of possession postponed, or, stated another way, whether Walter’s survival of the life tenant, his mother, was a contingency upon which depended his or his successor’s interest as remaindermen. In construing the language of a bequest, such as we have here, the primary common law rule in favor of early vesting of title in remaindermen and the preference for vested rather than contingent remainders is firmly established in this state. (Williams v.

Williams, 73 Cal. 99 [14 P. 394]; Estate of Rider, 199 Cal. 742 [251 P. 805]; In re Shoemake, 211 Cal. 457 [295 P. 830]; Estate of Ritzman, 186 Cal. 567 [199 P. 783]; Estate of Riemer, 69 Cal.App.2d 634 [159 P.2d 677]; Estate of Norris, 78 Cal.App.2d 152 [177 P.2d 299]; Estate of Whitney, 176 Cal. 12 [169 P. 399]; Estate of Lawrence, 17 Cal.2d 1 [108 P.2d 893]; Victory Oil Co. v. Hancock Oil Co., 125 Cal.App.2d 222 [270 P.2d 604]; Rest., Property, § 243; Simes and Smith. The Law of Future Interests, § 573.) This rule is given recognition in

section 28 of the Probate Code which provides: "Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator’s death.”

Section 123 provides in part: “A testamentary disposition to a class includes every person answering the description at the testator’s death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed.” And it has been said by noted authors on the subject, with the citation of numerous authorities, that: “A remainder limited without words of condition to a class of persons, such as ‘children,’ one or more of whom is in existence and ascertained, is vested, though subject to be divested in part by the coming into existence or ascertainment of other members of the class.

This is the typical vested remainder subject to open. Thus, if land is devised to A for life, remainder to the children of A, the remainder vests in the children as soon as they are in existence, although the other children born to A will eventually participate in the enjoyment of the estate. Usually this issue is involved when one of the children of A has died before his ancestor, and the question to be decided is whether the heirs of the deceased child take a share in the remainder or whether it all passes to those children who survive A.

If there were a condition precedent of survival to the time of distribution, then the heirs of the deceased child could not take. The conclusion that the remainder is vested, and not subject to any condition precedent, is regarded as being based upon the theory that there is a person in being to whom the seisin could pass. While the interests of the unborn or unascertained persons can hardly be spoken of as vested in any possible sense of the word, the remainder is said to be vested, since the interest of the ascertained person may be regarded as vested.

This proposition can be stated in another way: the mere fact that the entire membership of the class cannot be determined until some later time when the interest becomes possessory does not mean that there is a condition precedent that the existing members of the class must survive until that time in order to partake of present ownership.

Only rarely does a court reach a contrary result.” (Emphasis added; Simes and Smith, The Law of Future Interests (1956), §146; see Rest., Property, §§ 256, 257, 260.) And: “. . . the cases indicate clearly that the mere fact that takers of a postponed gift are described by a class designation such as children, grandchildren, nieces, nephews, and the like, does not give rise to any implied condition of survival. In other words, a gift of a future interest to a class may be vested in interest even though possession and enjoyment are postponed.

The whole concept of a remainder vested subject to open is based upon such a view, and the overwhelming weight of authority is to the effect that gifts to a class, without any words of condition, are vested when there is some member of the class in being.” (Id., § 578.) And further: “An examination of the decisions indicates the following conclusions: First, if a testator expressly provides that a class gift is to vest prior to the time when the class closes, his intent will be effectuated.

Second, as to devises of land, there is no presumption that, in a gift to a class where distribution is postponed, there is a condition precedent that the members of the class must survive the period of distribution; as to bequests, at least in some jurisdictions, courts may occasionally imply a condition precedent of survivorship in the case of a gift to a class with distribution postponed to a future time where they would not do so in the case of a gift to named persons. “It is to be noted that the rules of construction which separate the problem of vesting of class gifts and the problem of the closing of classes, are not mere technical doctrines derived from lifeless concepts of property law.

The court, in a very real way, is effectuating what the normal testator would desire. Consider the typical case where a testator leaves his residuary estate to his son A for life, remainder to A’s children. Suppose A has two children at the testator’s death. One of them dies before A, and two more children are born. In many instances the testator has not contemplated these changes in circumstances. Yet, had he done so, he probably would have wished to include in the class all those children living at his own death plus all those subsequently born.

If we regard the time of vesting of the class and the time of its closing as one and the same, this wish cannot be effectuated. The children, as of the testator’s death, are but two. The children, as of the time of A’s death, are three. But, if we apply the rule that the remainder vests in the two living at the testator’s death, subject to open and let in after-born children, we let in all four children.

All stirpes are represented.” (Id., § 654.) In In re Shoemake, 211 Cal. 457, 460 [295 P. 830], the court was considering whether the successors of the life tenant’s daughter, who died before the life tenant, would take where, under a deed, the remainder was to the heirs of the life tenant, the court saying in the course of discussion: “At that time Lela Barnett [the daughter] was living and could have been specially mentioned; she was not. She might have been clearly identified as the holder of a vested remainder by the use of the term ‘children’ without other language, but was not.

What could the grantor have had in mind? Certainly not the intention to provide for Lela Barnett in particular, but in general for his descendents, including Lela Barnett. The intention to have his property go to persons in his own line of descent seems plain.

If, however, a vested remainder came to Lela Barnett, it was possible for her prior to her actual possession of the property [emphasis that of the court] to alien her future interests, so that it might go to strangers.” (Emphasis added.) In Estate of Backesto, 71 Cal.App. 409 [235 P. 670] the testator’s will bequeathed a life estate to his wife and “after her death, the property shall be sold, and the proceeds shall be equally divided” between “the children” of certain brothers and sisters of the testator and his wife. A child of one of the brothers died before the wife who was the life tenant.

The court held that the successor of the child dying before the life tenant took the child’s share, stating at page 416: “All these sections [various sections of the Civil Code] show the unmistakable intention of the statutory law to declare that a devise or bequest shall vest at the testator’s death unless some other intention is expressed in the will. This policy has been recognized and approved by the California decisions. (Williams v. Williams, 73 Cal. 99, 102 [14 P. 394]; In re De Vries, 17 Cal.App. 184, 190 [119 P. 109]; Miller v.

Oliver, 54 Cal.App. 495, 498 [202 P. 168]; Estate of Campbell, 149 Cal. 712, 717 [87 P. 573].) The same rule is approved in 23 R.C.L., pp. 530, 535, Doe etc. v. Considine, 6 Wall. (73 U.S.) 458, 475 [18 L.Ed. 469, see also Rose’s U.S. Notes], and McArthur v. Scott, 113 U.S. 340, 378 [28 L.Ed. 1015, 5 S.Ct. 652]; 24 Am. & Eng. Ency. of Law, 2d ed., p. 382; and numerous other authorities which we deem it unnecessary to cite.

It is accepted as a settled principle by such text-writers as 2 Jarman on Wills, p. 841; 2 Williams on Executors, 7th ed., p. 1344, Alexander on Wills, § 996, Minor on Real Property, § 749, and Tiedeman on Real Property, § 302. It has thus become a fixed policy in the

interpretation of clauses of this nature found in a will that a disposition to a class includes every person answering the description at the testator’s death and that the estate vests in them as they come in esse though the possession is postponed to a future period.” In Keating v. Smith, 154 Cal. 186 [97 P. 300], the decree of distribution provided that on the termination of a trust, the duration of which was measured by the minority of the children, the corpus was “to go” to the testator’s widow.

The court held that the widow possessed an interest, which was not contingent upon her survivorship until the termination of the trust, and she, having died before that time, nevertheless had an interest during the life of the trust which passed to her heirs or devisees.

In Estate of Wallace, 11 Cal.2d 338 [79 P.2d 1094], the decree of distribution distributed the property in trust with directions to pay the testator’s widow a specified periodic sum out of the income, and also directed that two named children receive the balance of the income, and upon the death of the life tenant-widow the trust was to terminate and the trustee “shall distribute the balance” of the trust property to the two children.

One of the children predeceased the widow but the court held that her share passed to her heirs as a vested remainder, reasoning that the words “shall distribute” (the direction to the trustee) referred to the distribution or delivery of the possession of the property rather than creating a contingency of survivor-ship or the passage of title.

In Estate of Norris, 78 Cal.App.2d 152 [177 P.2d 299], the will set up a trust and provided that the trust should end on the death of named persons and “thereupon and at once the . . . trustee shall grant and deliver” the corpus to the “children” of Frederic and Edith, the testator’s son and wife. One of the children died before the life tenants. The decree of distribution was somewhat differently phrased.

The court held that the deceased son’s heirs or devisees took his interest,, stating at page 161: “The law is well settled that vested remainders can be created in a class the membership of which is not complete at the effective date of the grant or devise, so that similar vested interests accrue to those who, by later entry therein, fall within the class. Thus, in the present case, even if the ‘after-born’ clause referred to the remainders as well as to the trust (the trial court found it referred only to the trust), that factor would not indicate that the remainders were contingent.

In such a case the remainders could well be vested in the three children of Frederic and Edith, and, had there been any later entrants into the class (there were not), their interests would have vested as they were born, and by virtue of the consequent increase in the class membership, the vested interests of the preceding members would have been proportionately diminished. It is well settled that the fact that the interests of existing members of the class may be thus diminished does not convert the interest of such members to contingent remainders.

In such event the remainders are vested subject to a condition subsequent. This is the rule of the Restatement. In 2 Restatement of the Law of Property,

section 157, it is provided that: ‘A remainder can be (

a) indefeasibly vested; or (

b) vested subject to open. . . .’ As an illustration of clause (

b) the Restatement states: ‘A, owning Blackacre in fee simple absolute, transfers Blackacre “to B for life, remainder to the children of B.’’ B has a child C.

C has a remainder vested subject to open and let in other children born to B.’” (See also to the same import, Estate of Welch, 83 Cal.App.2d 391 [188 P.2d 797]; Estate of Newman, 68 Cal.App. 420 [229 P. 898]; Estate of Klein, 23 Cal.App.2d 708 [74 P.2d 79]; Estate of Riemer, 69 Cal.App.2d 634 [159 P.2d 677].) Estate of Cavarly, 119 Cal. 406 [51 P. 629], apparently is to the contrary on its assumption that a gift of a future interest to a class was dependent on survival but it misconstrued the authority cited therefor (see 40 Cal. L.Rev. 58-59) and failed to apply a portion of the provisions of

section 1337 of the Civil Code, now

section 123 of the Probate Code, supra. The same is true of Estate of Clark, 64 Cal.App.2d 636 [149 P.2d 465], Those cases (Cavarly and Clark) and such cases as Estate of Blake, 157 Cal. 448 [108 P. 287], and Estate of Hamon, 136 Cal.App. 517 [29 P.2d 326], are disapproved insofar as the question herein decided is concerned. Anglo California Nat. Bank v. Kidd, 58 Cal.App.2d 651 [137 P.2d 460], and In re Rogers, 94 Cal. 526 [29 P. 962], may be distinguished on the basis of the language in the instrument construed.

Estate of Hartson, 218 Cal. 536 [24 P.2d 171], and In re Winter, 114 Cal. 186 [45 P. 1063], did not apply the erroneous rule of Estate of Cavarly, supra, 119 Cal. 406, that in case of class gifts there is a condition of survivorship and may also be distinguished on the basis of the language used in the instruments construed. The words of the will directing that on Mrs. Hansen’s death the trust should cease is nothing more than a way of saying that the trust is for her life.

While the words thereafter directing that the corpus shall “belong” to and “be delivered” to the life tenant’s children, the remaindermen, may encompass ownership in other situations (see, for example, Hackett v. California Laundry, 7 Cal.App.2d Supp. 757 [45 P.2d 833]; San Francisco v. McGovern, 28 Cal.App. 491 [152 P. 980]; State Land Settlement Board v. Henderson, 197 Cal. 470 [241 P. 560]; 10 C.J.S. 241), they are not technical terms but are one? which are common in everyday usage and may refer to possession only. Certainly that construction is reasonable, leaving the rule of early vesting applicable.

This serves to distinguish Estate of Easter, 24 Cal.2d 191 [148 P.2d 601], In that case, the term to be construed was the technical word “vest,” and the clause in which it was contained did not appear in the will but had been added by the probate court in its distribution decree. It was, therefore, concluded that the word “vest” did not give rise to the application of the early vesting rule, but referred to ownership. The situations in the present case and in the Easter case are thus different. The direction for delivery is an instruction to the trustee of the trust.

The expression “belong to” adds nothing to the phrase “go to” such as in a devise to A for life and the remainder to go to B. Nor do we attach any persuasive significance to the remaindermen being referred to as child or children. It merely indicates that the testator wished to keep the class open to any additional children of Amy Hansen inasmuch as she had only one child when the will was made and when the testatrix died. Declaring the intent of the testatrix as the court must, the foregoing construction finds support in the will as a whole.

The significance of the will’s provisions can be appreciated in the light of the situation then existing with respect to the family of the testatrix, i.e., the Lathrop family. The testatrix had six brothers but no sisters, and, at the time of her death, only two of her brothers were alive, Charles, who had children, and Ariel, who did not. Of the four deceased brothers, only one, Daniel, had left issue.

His children were Jennie Lawton, who, on the effective date of the will, had one child, Daniel; Amy Hansen, who had one child, Walter; and Christine Gunning, who had died leaving two children, Daniel and Amy Gunning. The will disposed of a substantial sum for the benefit of the members of the Lathrop family. One million was left to Charles as an outright gift. The other two million were placed in trust.

Ariel was to receive income from one million dollars for life, and it was provided that upon his death, “as he had no children or descendants,” the trust as to that portion “shall cease and determine” and that the portion “shall belong to and be delivered to” Charles and the descendants of Daniel, Charles to receive one-half, Jennie Lawton one-third of the other half, Amy Hansen another third of the second half and Daniel and Amy Gunning the final third of that half.

As to the second million which was placed in trust, income from one-third was to be paid to Jennie Lawton for life, and it was provided that upon her death the trust as to that portion “shall cease and determine” and that the portion “shall belong to and be delivered to” her child or children. An identical provision, which is the one involved in the present case, was made with respect to another third of the second million in favor of Amy Hansen and her child or children.

The final third of that million was left in trust to pay the income to Daniel and Amy Gunning until the younger reached the age of 25, at which time the trust involving this fund “shall cease and determine” and the fund “shall belong to and be delivered” to them in equal shares; provided, however, that if either child should die prior to the date of distribution then his share to his children or if no children to the other, or if the survivor of the two children also dies prior to the date of distribution then to his or her children or “heirs at law.” Following the above dispositions, the will left various bequests to the testatrix’ secretary, servants and certain charities.

In a subsequent paragraph the testatrix explained that “Since executing former wills, a Kind Providence has brought about more favorable conditions in the affairs of the Estate left me by my beloved husband, and for this reason I have greatly enlarged my gifts to the Leland Stanford Junior University, and I now feel justified in enlarging, as I have done in this Will, my bequests to my relatives and friends and different charities, which have been ever dear to my heart." She then gave certain items of personal property and the residue of her estate to Stanford University.

It seems reasonable to conclude that, as is suggested by the testatrix’ explanatory statement quoted above, her dominant purpose “now,” that is, in making the will, was to enlarge gifts to the members of the Lathrop family. The manner in which the assets were disposed of reflects some intent to benefit the Lathrops on a per stirpes basis, in accordance with the then existing facts with respect to survivorship and existence of issue.

This design is, of course, first indicated by the allotment of one million dollars for the benefit of each of the testatrix’ two surviving brothers, as well as for the descendants of the only deceased brother who had left issue. The plan may appear from the provisions with respect to the descendants of Daniel, where the per stirpes pattern is expressly applied to succeeding generations.

The same indication may be found in the provision disposing of the remainder after Ariel’s life interest, where the will, after explaining that Ariel had no children or descendants, divides the remainder equally between, on the one hand, Charles, who had children, and, on the other hand, the descendants of Daniel. The matter which might, at first glance, seem somewhat inconsistent with the suggested pattern is that the gifts benefiting Charles’ branch of the family were made directly to him instead of his descendants, but this fact is explained.

Unlike Daniel, Charles was alive, and, unlike Ariel, Charles had issue. The evidence shows that the testatrix had complete trust in Charles, and we would seem justified in assuming that she was confident that the gifts left to him would ultimately benefit his descendants on a per stirpes basis. Taken in the light of the foregoing, certain aspects of the will have significance in connection with the question whether a condition of survival was intended in the provision before us.

In the first place, it seems that the testatrix would not have intended that the descendants of brother Daniel should get more benefit from her property than the descendants of Charles, or vice versa. Yet, such unequal treatment was entirely possible, so far as the testatrix knew, if the words “shall belong to and be delivered to” gave rise to a condition of survival.

As we have seen, those words were used in every instance in which there was a remainder after an income trust, including the remainder following Ariel’s life interest, where the corpus was to go in halves to Charles and to the named descendants of Daniel.

Thus, if the language in question made the dispositions contingent, and if Charles predeceased Ariel, the most which Charles’ descendants might expect would be the benefit of the one million dollars given outright to Charles, whereas the descendants of Daniel, were they to survive Ariel, would realize the benefit not only of the million provided for them initially, but also of their one-half million share of the remainder following Ariel’s interest.

Similarly, under a continent construction, if the named descendants of Daniel, or any of them, predeceased Ariel, the share of the remainder going to that branch of the family would totally or partially fall into the residue, even though they left issue, whereas, should Charles survive Ariel, his descendants might benefit from a million and a half dollars of the testatrix’ money. In the second place, it appears that the testatrix would not have wished to treat unequally descendants of Daniels having the same relationship to him.

Yet, if she were held to have intended a condition of survival with respect to the remainders following the life interests of Jennie Lawton and Amy Hansen, such a situation could easily have arisen. For example, so far as the testatrix knew, all children of Jennie might die before her but leave children of their own, who would be entitled to nothing under the contingent construction, whereas, if Amy’s children should survive her, their children might expect to benefit. Thus, great-grandchildren of Daniel would receive unequal treatment.

In this connection, it should be noted that Daniel’s great-grandchildren through Christine were expressly contemplated as possible beneficiaries under the provisions that, should Daniel or Amy Gunning die before reaching the age of 25, the deceased’s share of corpus was to go to his or her children, if any. It should not therefore be supposed that the testatrix would have intended that Daniel’s great-grandchildren through Jennie Lawton and Amy Hansen would not benefit if their parents failed to survive the intervening trusts.

Another respect in which the will, as a whole, seems opposed to a contingent construction is the indication from the language used therein that the property made available to the Lathrops should in no event fall into the residue. There would appear to be no question in this connection, so far as the outright gift to Charles is concerned. The same is true as to the gift to the Gunnings, since it was expressly provided that, should they die without issue before reaching the age of 25, their interest was to go “to the heirs at law” of the survivor.

It is difficult to see why the testatrix would have intended that Stanford be in a different position with respect to property disposed of by the other provisions. Finally, with reference specifically to the provision under consideration, it should be noted that, so far as the testatrix knew, it was possible that Walter would be the only child Amy Hansen would ever have and that Walter would predecease his mother, leaving children of his own.

In such an event, if the testatrix made the remainder following Amy’s life interest contingent on survival of Amy, Walter’s children could not benefit from it, either through intestate succession or under a will which Walter might make in their favor, and the remainder would go to Stanford under the residuary clause.

It is doubtful that the testatrix would have intended to use language making such a development possible, particularly when, as we have seen, she expressly provided in the clause involving the Gunnings that, if either of them failed to survive the intervening trust, his children should take and that, if both of them died without issue before the end of the trust, their gift was not to go to Stanford but to the heirs at law of the survivor. Ruth Barton is, of course, in the same position as children of Walter would have been, had they been the claimants here.

In short, the testatrix’ intent in framing the will must be determined in the light of the eventualities which, so far as she was in a position to know, were possible, rather than in the light of what actually developed after her death, and, so viewed, a contingent construction of the words “shall belong to and be delivered to” would seem to be out of harmony with the equal treatment of relatives which she appears to have had in mind.

Since we have concluded that the lower court was in error in deciding that Ruth Barton did not take a portion of the remainder as successor of Walter Hansen, the son of Amy Hansen, who was alive when the testatrix died but predeceased his mother, it is not, therefore, necessary to discuss the contention of Ruth Barton with regard to the effect of the 1906 and 1927 decrees of partial distribution. Stanford University contends, contrary to the finding by the lower court, that the remaindermen of the devise to Amy Hansen could not include the persons adopted by her as her children.

It will be recalled that Amy Hansen had the court approval of an adoption agreement entered in New York in 1924, after the death of the testatrix, by which she adopted her niece, Mrs. Reynolds, an adult, and the two minor children of Mrs. Reynolds, Aimee and Minnie Rochester. The adoption approval provided that the adoption “be allowed and confirmed and henceforth the said Aimee G.

Reynolds, Aimee Christine Rochester and Minnie Devereaux Bond Rochester shall be regarded and treated in all respects as the children of said Aimee Lathrop Hansen.” It is clear from the authorities heretofore discussed that the class, children, was to remain open to additional children after the death of the testatrix, and it should be equally clear that children adopted after the death of the testatrix are included as remaindermen.

It has been the policy of this state, at least since the adoption of the Civil Code, to accord to adopted children the same status as natural children. “A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.” (Civ. Code, § 228.) “The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it.” (Civ.

Code, § 229.) “‘If the adopted child is by virtue of its status to be “regarded and treated in all respects as the child of the person adopting,” and is to “have all the rights and be subject to all the duties of the legal relation of parent and child,” the right to succeed to the estate of the deceased parent must be included.’ (In re Newman, supra, 75 Cal. 213, 219 [16 P. 887, 7 Am.St.Rep. 146].)” (Estate of Pierce, 32 Cal.2d 265, 268 [196 P.2d 1].) This court has squarely held that “. . . an adopted child has a status with respect to its adoptive parent identical to that of a child born of such parent and succeeds to the estate of an adoptive parent in the same manner as a child born of such parent. . . .” (Estate of Pierce, supra, 32 Cal.2d 265, 268.) “The effect of an adoption is to establish between the adopting parents and the child the legal relation of parent and child, with all the legal consequences of that relation, including the child’s right to take the family name of the person adopting it.

This necessarily implies that the natural relationship between the child and its parents by blood is superseded. The adopting parent is substituted for the parent by blood, who ceases to be in a legal sense the parent, his place being taken by the adopting parent.

In other words, from the time of the adoption, the parents by blood are relieved of all parental duties towards, and all responsibility for, the child adopted, and have no right over it. “The effect of the adoption is not limited to the period of the lives of the adopting parent and the adopted child; and the relation of parent and child, which existed between the parent by blood and the child prior to the adoption, is not revived by the death of the adopting parent prior to the death of the child. “Adoption does not affect the citizenship of the adopted child; and a minor does not lose his citizenship because of his adoption by an alien.” (2 Cal.Jur.2d, Adoption of Children, §46.) The Probate Code now reads somewhat differently than at the testatrix’ death: “An adopted child succeeds to the estate of one who has adopted him, the same as a natural child; and the person adopting succeeds to the estate of an adopted child, the' same as a natural parent.

An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by the adoption, nor does such natural parent succeed to the estate of such adopted child.” (Prob. Code, § 257.) The foregoing policy of our law is a factor in determining whether the term “children” includes an adopted person.

It has been said that generally the term “children” might not include adopted children (Rest., Property, § 287; Simes and Smith, The Law of Future Interests (2d ed.), §724; 144 A.L.R. 670; 70 id. 621) but also: “Similarly, the existence of a statute which simultaneously includes the adopted child as an intestate taker from his adopting parents and excludes him as an intestate taker from his natural parents (see § 288, Comment

b) facilitates a finding that the conveyor used the word ‘child’ with the intent to include thereby such an adopted person, as a child of his adopting parent, even though the requirements of neither Clause (

a) nor Clause (

b) are satisfied.

When such facts concur with other constructional factors having the same constructional urge, the inclusion of the adopted child is justified.” (Rest., Property, §287, com. d.) And it has been held that “children” when used in statutes includes an adopted child. (Estate of Mercer, 205 Cal. 506 [271 P. 1067]; Estate of Moore, 7 Cal.App.2d 722 [47 P.2d 533, 48 P.2d 28].) In the Mercer case it was said (p. 510) : “The weakness of appellant’s position is simply that the adopted daughter cannot have the full benefit of her right as a daughter of the deceased husband in her relation to said husband unless the word ‘children’ in this statute of succession is held to include her.

The predeceased spouse had an interest in, if not full ownership of, the property in question. Natural justice suggests that his daughter have an interest therein. In making his will he may have had the very contingency in mind that has arisen, and decedent, too, may, with knowledge of this statute, have declined to make a will. . . . “As another illustration, suppose decedent had willed the property to ‘my heirs’ or to the ‘children of my deceased husband,’ would there be any question but that such a testament would include the said adopted daughter? Admittedly, in subdivision 1 of

section 1386, the word ‘issue’ included an adopted child (In re Newman, 75 Cal. 213 [7 Am.St.Rep. 146, 16 P. 887]; Estate of Winchester, 140 Cal. 468 [74 P. 10]; In re Darling, supra [173 Cal. 221 (159 P. 606)]). Appellant admits that the word ‘issue’ in several places in said

section does include an adopted child. Again, an adopted child has been held to be a lineal descendant of the adopting parent (Estate of Winchester, supra; Warren v. Prescott, 84 Me. 483 [30 Am.St.Rep. 370, 17 L.R.A. 435, 24 A. 948]). If this be conceded, it argues strongly for the rule that an adopted child is entitled to any legacy the law gives to the children of an adopting parent. "The whole matter is concluded by the observation that the cases cited and the principles urged by appellant furnish no sufficient reason for restricting the scope of the word ‘ children ’ in the provision under review.

To exclude adopted children from its scope would be to say that they are not entitled as to the adopting parent to the full rights of natural children, which is contrary to the express provision of the statute (§§ 227 and 228, Civ. Code), and the terms of the decree of adoption. Even the case of Hockaday v. Lynn, 200 Mo. 456 [118 Am.St.Rep. 672, 9 Ann.Cas. 775, 8 L.R.A.N.S. 117, 98 S.W. 585], above referred to, concedes that ‘the adopted child is so let in only for the purpose of preserving in full its right of inheritance from its adoptive parent.’” (Emphasis added.) It is said in Dyer v.

Lane, 202 Ark. 571 [151 S.W.2d 678, 680]: “We think a proper construction of this will means, that the testator, when he speaks of ‘the heirs of my son, Haskell A. Dyer’, meant the children of Haskell A. Dyer. Children may include adopted children as well as the children of one’s body. Deener v. Watkins, 191 Ark. 776 [87 S.W.2d 994], In Powell v. Hayes, 176 Ark. 660 [3 S.W.2d 974, 975], this court said: “‘In the alleged will under consideration in this case the testator gave the balance of his property to his wife and heirs, as the law provides.

In its strict legal sense the word “heirs” signifies “those upon whom the law casts the inheritance of real estate.” But this construction will give way if there be upon the face of the instrument sufficient to show that it was to be applied to children. Flint v. Wisconsin Trust Co., 151 Wis. 231 [138 N.W. 629, Ann.Cas. 1914B, page 67], and case note at page 70; 2 Commentary on Wills by Alexander, pars. 850-852, inclusive; 1 Page on Wills (2d Ed.) p. 1496, § 891; and 28 R.C.L. p. 248, § 216. . . .” (See, also, Kelly v. Kelly, 176 Ark. 548 [3 S.W.2d 305]; Deener v.

Watkins, 191 Ark. 776 [87 S.W.2d 994].) In Estate of Pierce, 32 Cal.2d 265, 268 [196 P.2d 1], it was held there was a showing that the testator did not intend to include adopted children by the use of the term lawful issue and that the adoption statutes do not require, in the face of other evidence, that such words include an adopted person. The status of an adopted child should be of some significance in construing a will for the testator may be said to realize the possibility of adoption and its effect.

It has been well said: ‘ . . . by investing an adoptee with a particular status, such as that of a ‘child’ of the adopter, the statute may have the inclusionary effect of tending to bring the adoptee within a designation. Thus, if the statute declares that the adoptee shall be deemed a ‘child’ of the adopting parents as fully as though born to them in lawful wedlock, it is properly one of the circumstances in the light of which a devise to the ‘children’ of the adopting parents should be read.

Where it is the sole surrounding circumstance of any materiality, the argument may be advanced that it supplies the conveyor’s meaning. . . . “[I]t is interesting to discover that even sixty years ago the Supreme Court of Alabama had no difficulty in concluding that, absent language in the adopting statute confining the adoptee’s rights to those of inheritance, it would have been the probable ‘duty’ of the court to hold that an adopted child took under the term ‘children’ in a will, for the reason that by dictionary definition adoption is ‘an act by which a person appoints as his heir the child of another, ’ and means ‘to receive and to treat as a son or daughter one who is the child of another,’ and ‘to take into one’s family as son and heir; to take and treat as a child, giving a title to the privileges and rights of a child.’ To this thought, then expressed, can be added now the further one that by a century of development in states with a background of common law the institution of adoption, though not indigenous to us, has become ‘naturalized’ here and is an important and familiar adjunct of our society and our law.

It cannot be dismissed as involving the unusual. . . . "Other adoption statutes, however, in growing number, do not restrict the status of the adoptee to that of an heir of the adopter or to that of a child for purposes of enumerated benefits only. The trend is toward making the adopted child a child of the adopter to all intents and purposes.

Thus, in upwards of twenty-five jurisdictions, including a few already mentioned as having narrow statutory provisions with respect to the actual effect of the adoption, the portion of the adoption statute relative to the making of the decree provides for a declaration therein that the adoptee shall be the child of the adopter ‘to all legal intents and purposes,’ or that he shall be regarded and treated ‘in all respects’ as the child of the adopter, or that the rights, duties, privileges and relations between the adoptee and adopters shall ‘in all respects’ be those of a child born in lawful wedlock. . . . “Unrestricted by such an amendment, the wide language of the original Massachusetts statute and others like it can reasonably be taken to supply a prima facie meaning for ‘child,’ when used in a private instrument, which would include an adoptee.

This is indicated by Sewall v. Roberts, supra [115 Mass. 262], and it is the conclusion reached or suggested in some other cases, both where the conveyor himself was the adopter and where he was not. . . . “For the purposes of the discussion it was more or less tacitly assumed that the adoption statute constituted one of the circumstances surrounding the formulation of the language of the instrument, and was to be considered as such. This was in harmony with the announced attitude of most courts which have taken the trouble of referring to the point at all.

Otherwise stated, it is presumed that the instrument was executed in the light of knowledge of the then existing adoption law. A few courts only would disregard the adoption statute entirely or openly belittle its position among the surrounding circumstances. There is more common and proper reluctance to attach to the statute, in its relation to the construction of a private instrument, a presumptively controlling significance in the face of other circumstances which may be felt to be of importance also. . . . “No one can read the cases on this subject without soon becoming aware of what for the most

part is an unexpressed but nonetheless perceptible attitude of fear on the part of the courts that, unless they guard well against it, the institution of adoption may be an implement of self-advancement, fraud or spite in the hands of adopters seeking to use it deliberately to meet requirements of an instrument, such as a will, that the adopters have children.

There has been some basis for this fear in the facts of a few of the cases. “The danger to which reference has just been made is doubtless most real where the adopter himself, as distinguished from the adoptee, will benefit if the conditions with respect to his having children can be met by him. It is thought there is significance in the fact, therefore, that in no instance where an instrument gave to a person a restricted estate, which would ripen into a larger one if he should have children, did the court permit the increase in his interest and the defeat of the gift over to be accomplished through an adoption.

So where a testator’s nephew was to receive a third of the income from a trust for life or until he should have a child that should attain the age of three years, and in the latter event he was to receive a third of the principal, the court held that, having no natural children, he did not qualify for the corpus share, although he and his wife took a child of about six months into their household approximately a year after the testator died, and adopted the child three years later.

And there is authority that one given a fee simple estate, de-feasible in event of his death without children or issue, could not by subsequent adoption acquire an absolute estate and avoid the executory limitation. . . . “If, as is the usual case, the adopter has a life estate only, but his children, issue or other relatives are to take the remainder, with gift over to others if he die without children, etc., then the chances of direct personal gain to the adopter are not great, even if adopted children should qualify as takers within the meaning of the will.

In this situation, however, courts seem moved by a fear that if they should recognize adoptees as qualifying under the will to take the remainder, the life tenant might adopt a child simply to defeat the gift over to others. . . . “The possibility of the use of adoption for avaricious or spiteful purposes cannot be denied. The probability of its employment for those ends is believed, however, to be slight under modern adoption statutes contemplating a thorough investigation into such matters as the motives of the prospective adopter.

It should be time enough to speculate upon possible fraudulent use of adoption when the fraud is found.

And in considering policies involving the public interest, a court ought not overlook any which may be manifested by the legislature in placing adopted children on a level with natural children ‘to all intents and purposes.’” (43 Mich.L.Rev. 705, 710 et seq.) Coupled with the foregoing we have a letter written by the testatrix in 1897, seven years before the execution of her will, to inform the president of Stanford University of the fact that neither she nor her husband had ever adopted testatrix’ niece, the daughter of her brother Charles Lathrop.

The letter shows that Charles’ wife died when his child, Jennie, was an infant and before her request of Mr. Stanford to take care of the child. Mr. Stanford was opposed to taking the child in as their own but Jennie was cared for by the testatrix.

The testatrix said she placed the letter on record with Stanford University because ‘ * So very many unexpected and new phases in human nature have been brought to my attention, and in a way have added to my sorrows—some hearts have hardened towards me who should have been sympathetic and tender because of my dear husband’s loving remembrance of them and these revelations of character have led me into a train of thought that impels me to write this letter to you that you may fully understand the relations that exist between my niece Jennie L.

Lathrop and myself.” And in closing, “I make this explicit explanation in this letter to you that you may hold it sacred and if . . . the subject would be discussed whether or not Jennie L. Lathrop had been adopted, you can use this letter and defend me. "I hope and pray that there will be no need to ever produce it, but I have learned by very sad experience the greed for gain tempts beyond the ability to resist. My dear brother Charles G.

Lathrop the Father has been most kind in allowing me to care and do for her as best pleased me, and he will never deviate from his love and loyalty to me, or my memory.” The letter also states that Jennie and all the children of Mrs. Stanford’s brothers, then living, had been given one hundred thousand dollars in her husband’s will. She expresses the opinion that she has won the love and devotion of this niece. From this letter the trial court concluded that Mrs.

Stanford understood the meaning and effect of adoption, that she believed that an adopted child would have the same rights as a natural child, hence when she made a bequest to the “child or children” of her niece, Mrs. Hansen, she intended to include any children that Mrs. Hansen might adopt. While the letter is not conclusive evidence, it, together with the foregoing public policy with reference to adoption and the status of the person adopted, shows that the testatrix had considered the matter of adoption and its effect upon the person adopted.

There is no merit to Stanford University’s claim that the New York adoption was not an adoption. Mrs. Hansen and Mrs. Reynolds and her children appeared before the New York court consenting to the adoption and the court approved it. While there may have been some irregularities in the proceeding they are not of sufficient importance upon which to base a collateral attack. While the divorced husband of Mrs. Reynolds and the father of the children may not have been notified (the proceedings do not show whether or not he was) and did not consent, we fail to see how that will avail Stanford University here.

The adoption has stood for many years, since 1924, without attack by anyone. (See, Estate of Smith, 86 Cal.App.2d 456 [195 P.2d 842].) Stanford University has not established that the adoption was void and it must be presumed to have been valid. (Estate of Smith, supra, 86 Cal.App.2d 456.) The effect of adoption under the New York law and construction of the will is not important. We are not here concerned with a question of inheritance but with the construction of a will, and whether "child or children" includes adopted persons. The construction of the will is governed by California law (see Prob.

Code, §100; Rest., Conflicts, § 308). Stanford University suggests that the adoption was not made in good faith but merely for the purpose of inheritance—to bring the adopted persons under the will to the exclusion of Stanford University, the residuary legatee. This the lower court felt was not established and it is doubtful if it would be significant if it had been unless it showed the invalidity of the adoption which it does not. We find nothing in the will or the surrounding circumstances favoring Stanford University over the

interpretation we have given the will. The decree is reversed with directions to the trial court to order distribution of the property in accordance with the views herein expressed. Gibson, C. J., Traynor, J., and Schauer, J., concurred. Including the text now in Probate Code,

section 123, supra.