## Facts

- Helen Lathrop executed a will on November 3, 1972, and died in December 1972.
- The residue passed to a testamentary trust paying income to Lathrop’s six siblings; upon a sibling’s death, that sibling’s share of income went to the sibling’s living “issue” by representation, and at the last sibling’s death the corpus went to the siblings’ then-living “children.”
- Lathrop’s brother Earl Mitchell was the natural father of Jon E. Newman.
- Newman was adopted by his stepfather in 1946; under California law then in force, adoption terminated the legal parent-child relationship with the natural parent for intestate succession.
- In 1985, California amended intestacy statutes to allow an adopted-out child to inherit from a natural parent when the adoption was by a stepparent.
- Mitchell died in 1993; the trustee sought instructions whether Newman qualified as Mitchell’s “child” or “issue” under Lathrop’s trust.
- A guardian ad litem for a minor creditor of Newman argued Newman should be treated as Mitchell’s “child” under intestacy law in effect at Mitchell’s death, making Newman a trust beneficiary reachable by the creditor.

## Issues

1. When a testamentary reference to “children” or “issue” is ambiguous and intestacy law is used to infer presumed intent, should the court look to intestacy law in effect when the will was executed and the testator died, or the law in effect when the ancestor (through whom the claimant would take) later died?
2. Under the applicable interpretive rule, does a nephew adopted out in 1946 qualify as a “child” or “issue” of his natural father for purposes of a 1972 will creating class gifts?

## Decision

- The California Supreme Court reversed the Court of Appeal and reinstated the trial court’s determination that Newman was not a beneficiary.
- The Court held the relevant intestacy law for inferring the testator’s presumed intent is the law in effect when the will was executed (and at the testator’s death), not later law at the ancestor’s death.
- Applying former Probate Code § 257 (in force in 1972), Newman’s adoption severed intestate succession rights from his natural father, so Lathrop is presumed to have intended that Newman not take as Mitchell’s “child” or “issue.”
- Because the will contained no contrary expression, the later 1985 legislative change did not alter the meaning attributed to Lathrop’s kinship terms.

## Legal Principles

- When construing ambiguous kinship terms in a testamentary instrument, a court may consult intestacy statutes as a construction aid to infer the testator’s presumed intent.
- Absent a contrary expression in the instrument, the intestacy law used to infer presumed intent is the law in effect at the time the will was executed (and at the testator’s death).
- Later statutory changes in intestacy rules do not retroactively change the presumed meaning of class-gift terms in a previously executed will.
- Under former Probate Code § 257, an adopted-out child was not treated as the natural parent’s heir for intestate succession, supporting exclusion from class gifts described as the natural parent’s “children” or “issue” unless the instrument indicates otherwise.

## Conclusion

The court held that Lathrop’s presumed intent must be determined using intestacy law in effect when she executed her will and died in 1972; under that law, Newman’s 1946 adoption cut off his status as Mitchell’s “child” or “issue,” so he was not a beneficiary of the trust despite a later statutory amendment permitting inheritance in similar circumstances.


Newman v. Wells Fargo Bank, N.A., 14 Cal. 4th 126, 926 P.2d 969 (Cal. 1996)