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Show ' I I I I ' . MONDAY, NOVEMBER 25, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAGE NINE In The Supreme Court of The State of Utah to be given that meaning in the absence of explanatory context. It may, however, receive from the context in which it is used, read in the light of such extrinsic circumstances as are proper to be considered, the restricted meanings of "children," "grandchildren," "grandchildren whose parents are deceased," and. "heirs of the body. Re Farmers' Loan fc Trust Company5 is similar to the instant matter. There the meaning of the work "issue" was involved. The court said: ceremony, affects not only the immediate parties, but the family and all of society. Coordinate to the foregoing, I can see no reason why a person should not have an absolute and inviolable right to acquire and establish his family in the manner he chooses; and that his child, whether acquired by natural birth or by choice and adoption, should become his child for all intents and purposes, social, legal and otherwise. Even more important, the child himself should have the right tobecome a member of the family for all purposes, not only in relation to his adoptive parents, but in relation to brothers, sisters and so on to all other relatives, and to society in general. If this is not so, it is easy to see difficulties that may result as to the reciprocal rights and duties within the family and in relation to the public. Contrasted to this, by regarding the adoptive child as a bona fide member of the family for all intents and purposes the same as a natural child, much good would be accomplished and those dif- 11 The rule is that, unless some other meaning is given to it "issue" is not confined to children, but includes descendants in any degree. Citation omitted. Another meaning will not readily be given if the result would be to divert the gift from the direct line of descent. by the context, the word ... Some light is thrown on the meaning intended to be given the word "issue" when the settlor provided in section 3. 1 (c) that the share of the deceased son ficulties eliminated. should be distributed to such issue upon the principle of representation. "Representation" means per stirpes and not per capita, and "per stirpes" means taking or inheriting a share of an estate which the immediate ancestor would have taken had he lived. 6 li 54Am.Jur. , Trusts, $17. 2. Ibid. 3. Dumaine v. Dumaine, 16 N. E. 2d 625 (Mass. 1938), 118 A. L. R. 834. 4. 54Am. Jur. , Trusts, 18. 5. 213 N.Y. 168, 107.N.E. 340 (1914), 2 A.L.R. 910, 912. The main opinion itself, generously, but inc onsistent with its own clusion, 'quotes the definition of issue as a generic term. The term "issue, " . . . includes descendants of every degree and is to be given that meaning in the absence of explanatory context. This view, that the term should be given general meaning unless the contrary is shown is supported by abundant authority. A plethora of cases could be cited, but in order to avoid burdening the page, a few examples are sufficient for my purpose and anyone who desires to further pursue this subject. Blackstone Commentaries 217, 517. In In re Smith's Estate7 this court held that adopted children could not inherit from the relatives of the adoptive parents.8 6. 2 In re Heard's Estate, involved construction of a will creating a trust to be paid to the son's lawful issue. As in our case, after the death of the testatrix, the son adopted a child. The court held that it would be assumed, in the absence of any indication to the contrary, that the testatrix intended an adopted child to be included in the term "lawful issue" in view of the public policy to treat adopted children the same as natural children. It commented that there is no more probability that a person would adopt a child to adversely affect someone else, than that he would deliberately have a blood child for that purpose. clear, and that is this: In the year 1956 when the trust was created, the law was well settled that an adoptive child could not inherit from the parents of its adoptive patents.' That was the law as Samuel E. Makoff, Sr. , undoubtedly understood it, and that is the law that must govern the interpretation of the trust before us now. One thing is The law of inheritance was amended by Chapter 189, Laws of Utah 1971, to provide that in various sections "children shall include adopted children. " These amendments have no bearing on the matter before us, for we must ascertain what Samuel E. Makoff, Sr. , meant by the word "issue" when he used it in the trust deed on December 10, 1956. We agree with the trial court that he did not intend to include adopted children as In O'Brien v. Walker the court expressly rejected the contention that the term "issue" when used in a will or trust instrument, meant only "children of the blood" and held that an adopted daughter took as "issue" of the trustor's beneficiaries of his largess. daughter. The trial court is affirmed, and costs are awarded to the respondents. In Dollar Savings b Trust Company of Youngstown v. Musto5 the court held that a child adopted by the son of the testatrix 16 years after her death (1938) and 17 years after her will was executed (1937) was the son's "issue" within the meaning of the will. The court saiti: 1. To avoid repetition I refer to my dissent in In re Smith's Estate, 7 Utah 2d WE CONCUR: E. R. 405, 326 P. 2d 400, footnote 2. The main opinion quotes Callister, Jr. , Chief Justice 3. 49 Cal. 2d 514, 319 P. 2d 637 (1957). 4. 35 Hawaii 104 (1939), aff'd 115 F.2d 956 (9th Cir. 1940); and to the same effect see decision of the Supreme Court of the State of Hawaii, In re Estate of Cunha, 49 Hawaii 273, 414 P. 2d 925 (1966). . 5. 88 Ohio L. Abst. 62, 181 N. E. 2d 734 (Ct. App. 1961). R. L. Tuckett, Justice ... in modern days, after reading all of the cases submitted and after careful research, we find that the word "issue" has taken on a much broader meaning and feel that it now, and did at the time the will was drawn, include adopted children. CROCKETT, Justice: (Dissenting) To discriminate against the adopted child and deprive him of his share of the intended family trust is in my opinion a grave injustice. It is contrary to the clearly expressed intent of our statutory law; it is inconsistent with the better considered decisional law; and is out of harmony with sound policy con- siderations for the welfare of the family and society generally. The clearly expressed intent of our adoption statutes in accordance with 9, U. C. A. 1953; which the conclusion above stated is set forth in Section provides that upon the order of adoption: 78-30-- The child shall thenceforth be regarded and treated In re Holden's Trustthe testatrix died in 1926, one year after making will. She provided for her own adopted son for his life. The question was her whether a child adopted by her adopted son 1 1 years after her death was "lawful issue" of her adopted son. The Minnesota court, upon an exhaustive review of the decisions in this country, held the adopted child was such lawful issue. In summary I think it appropriate and directly to the point to the words of Judge Goodrich in Carpenter v. United States:7 in all respects as the child of the person adopting. And the succeeding Section 10 states that: That the current of modern thought on the matter is wholly in the direction of placing the adopted child in the family of his adoption as completely as though the relationship from the beginning had been by blood. ... out the clear mandate of those statutes, that the adopted child should have all legal rights the same as natural children, including those of inheritance and succession, our 1971 legislature An Chapter 189, S. L. U. 1971. It is entitled "Interests of Adopted Children, . . . enumerates all pertinent . . . et seq. 4, Act Amending Sections . . . succession and to wills Providing for Adopted Children sections relating and Succession Laws as Natural to Have the Same Rights Under the Inheritance the pertinent sections, addThe act then proceeds to Children of ing at each of ten separate sections the provision that, "For the purposes variations with slight this section, issue shall include adopted children," to the text of some sections. 7. 7 Utah 2d 405, 326 P. 2d 400 (1958). , 8. Justice Crockett filed a strong dissent in the case. re-enac- ted 74-1-2- ..." re-en- reiterate . . . . . . After adoption the two shall sustain the legal relation of that relation. of parent and child, and have all the rights For the purpose of carrying 7 of main opinion. 57 Am. Jur. , Wills, Sec. 1378, which see for numerous supporting cases; and see also Annotation, adopted child as within class in testamentary gift, 82 A. L. R. 2d 12. F. Henri Henriod, Justice . . . con- . Impelled by what has been said herein, I state with the utmost emphasis conviction that under the fair and clear interpretation and application of our my statutes, and the better considered decisional law on the subject, an adoptive child should be regarded as emancipated to the rights of a natural child in every respect; and that therefore this particular adoptive child should have his fair and lawful share of the trust. (All emphasis added. ) act 6. 207 Minn. 211, 291 N. W. 104 (Sup. Ct. 1940). In the later case of In re Trusteeship Agreement with Nash, 265 Minn. 412, 122 N. W. 2d 104 (1963), the court said: ". . .we hold that the settlor is presumed to intend that adopted children be included within the category of issue of a life tenant 'who may hereafter be born, ' " unless the contrary is shown. Similar holding in Prince v. Nugent, 93 R.I. 149, 172 A. 2d 743 (1961), the court stated that gift to lawful issue in a deed of trust prima facie includes the grantees' adopted child unless ap-propr- iate It requires but little reflection to see the fallacy in the concept of arrowing the adoption down to simply a contract between the adoptive parents and the child. It is just as erroneous as it would be to say that a marriage contract is only between the immediate parties. Whether we want to accept it or not, the immutable fact is that the adoptive proceeding, like the marriage otherwise stated. 7. 3 Cir. 168 F.2d 369, 372, 3 A. L. R. 2d 888, 889. Small Claims 31653 A V8 L. RICHARD BOOTH 31956 H81.9 31M Terry vs Aduns C LLVITZ FUrflllTUflE CO. AND dlNGHAKo N0H E DY CLEANING S5.00 31655 Lenter vh 1?U0 A E ?!( 3973 31657 Johnson CONSUMERS CHOICE So. Qlenn AND 3200 So. 19.50 Roger Dale Oisseman vs JOHN JONES It KAY JONES 31658 . vs Smith A DUANE BURDETTE BECKY BURDETTE 1873 Southwood Dr. BECK '' 3905 So. Lake Dr. 1200.00 31659 Mrs Lena Kratzer vs CUSTOM HOUSE LTD 1630 So. St. f 16 1.75 31660 Stephen Bess dba Bess Printing vs J 1200.00 Carter Diet. E 1163.15 Bank First Security PAUL Amerieurd vs KELLY 830 6th Willaia Clark vs VQQ So. 31665 8687 Vista 1 100. 00 Edith Derrick vs Buena BETTY Eastridge 1179.8' rn tun. B Maddox dba vs DENNIS R AND MAQ3IE JENSEN 730 E. 900 So. 31666 1200.00 Deseret Paint Co. JOHN BARTON ve 1709 Winds 50? 58 -- AAM0DT 1(959 F Statewide T8 CHRIS O0SDIS 0OSDIS ENT. 2781 VINTON PARKER 31664 B KEVEV VAUGHN 1200.00 W Schettler Williams DBA Edison St. 1200.00 31663 John Kershisnlk vs Ave 1182.29 31661 36OO 31662 31667 Speedometer and Air Condition ve AAA DICK MORRISON TIRES CO 5 : |