Wildman's Appeal , 111 Conn. 683 ( 1930 )

Questions eight and nine involve the right of Ella J. Disbrow, widow of Elmer B. Disbrow, to share in the real estate distributed to him, as his nearest of kin. While she was made a party to the action as administratrix of his estate, she is not a party, individually, and her rights cannot therefore be adjudicated in this action. If this were an independent action for the construction of the will of David B. Disbrow it might be sent back to have Ella J. Disbrow made a party. Since it is an appeal from an order of the Court of Probate the Superior Court cannot enlarge the scope of the appeal, and the defect in parties cannot be cured by remanding the case to that court.

The fourth paragraph of the will provides for the contingency of the death of one of the children of the testator "before coming into possession of their said one-third part." Since that contingency has not occurred there is no need to answer question two which asks for the construction of this paragraph of the will.

This leaves the principal question to be answered that of whether Kenneth, the adopted son of Clara Wildman, takes the one-third share in the estate of which she had the life use, as her lineal descendant or nearest of kin. Whether the words "lineal descendants" and "nearest of kin" are to be construed as including an adopted child depends upon the intention of the testator to be ascertained from the language of the will read in the light of all the circumstances surrounding the testator at the time of its execution. In their ordinary and primary meaning they connote relationship by blood and will be so construed unless it appears that the testator intended to use them in a more extended sense. Our statute of adoption (§ 4879) provides that an adopted child becomes the legal child of its adopting parents with the right of inheritance from them and their relatives the same as though it were their natural child. The testator is presumed to have known of this statute, which was in existence when this will was executed (Revision of 1888, § 472), and it is contended that he used the terms "lineal descendants" and "nearest of kin" as the equivalent of "children" and as including a child by adoption. A presumption that such was his intention does not arise from the mere assumption of his knowledge of our law of adoption. The existence of the law at the time of the execution of the will is one of the facts to be considered among the circumstances surrounding the testator, but by itself will not determine the testator's intention. Middletown Trust Co. v. Gaffey, 96 Conn. 61, 71, 112 A. 689. Where the testator is the adopting parent it is reasonable to presume, especially under an adoption statute as broad as ours, that, in the use of the word "child" or its equivalent in his will, he intends to include the child whom the law, by his own act of adoption, has made his legal child. Such presumption does not prevail where the testator is a stranger to the adoption, especially, and for obvious reasons, when the adoption took place after the testator's death. Middletown Trust Co. v. Gaffey,supra, and cases there cited; see also notes in 27 L.R.A. (N.S.) 1159, L.R.A. 1918B, 123, 5 A. L. R. 1280. This will was executed February 8th, 1896, the testator died February 28th, 1904, and the appellant was adopted by Clara Wildman on August 15th, 1918, fourteen years after the testator's death and twenty-two years after the execution of his will. As we said in the Gaffey case, this is a circumstance of controlling importance. We are seeking to ascertain the intention of the testator at the time he made his will. His daughter Clara was then married. The will provides that upon her death the portion of the estate of which she was given the life use should go to her lineal descendants or if there were none to her nearest of kin. We find nothing in the will to indicate that the testator used these words in any other than their primary meaning or that he had in mind the possibility of the adoption of a child by either of his children. The will provides that no husband of either of the testator's daughters shall ever have any control over any of his estate, and that his homestead shall not be sold during the lifetime of any of his children, but shall after their decease be the property of some of their lineal descendants, or if there be none then of the nearest of kin. These provisions, and the entire plan of the will, disclose an intention of the testator to confine the objects of his bounty to those of his own blood. Nowhere in the will, or in the circumstances surrounding the testator at the time of its execution, do we find any indication that he contemplated that a stranger to his blood should have any share in his estate. Under such circumstances there are no facts from which could be drawn an inference that he intended such result.

In Ansonia National Bank v. Kunkel, 105 Conn. 744,136 A. 588, when the will was executed a sister of the testator, who was then sixty-one years old and had no children of her own blood, had an adopted daughter who for many years had been regarded as a member of the family and had always been, and continued thereafter to be, on the closest terms of intimacy and affection with the testator who knew and approved of the adoption, acted as godfather at her baptism, and exhibited unusual fondness for her. These and other facts there present required the conclusion that in a bequest to the sister and "to her issue if she be dead" the testator intended to use the word "issue" in its restricted sense of "children" and to include the adopted daughter. In Mooney v. Tolles, 111 Conn. 1,149 A. 515, we held that the general plan of the will and the fact that the adoption occurred prior to the death of the testatrix and was approved by her indicated her intention to include an adopted child of one of her sons in certain gifts to the child or children of her sons. The situation here is strikingly similar to that in Middletown Trust Co. v. Gaffey, supra, where we held that the word "issue" in the will was used in the restricted sense of "children," but that a bequest to the issue of a son of the testator did not include an adopted child of the son when the adoption took place twelve years after the death of the testator.

As to questions 1, 3 and 4, we answer that the words "lineal descendants" in paragraph three of the will and the words "lineal descendants" and "nearest of kin" in paragraphs five and six of the will do not include the adopted son of Clara J. Wildman, and that Ella J. Hull and Elmer B. Disbrow were her nearest of kin. As to question 5 we answer Yes; 6, Yes. Question 7, in view of our conclusion, does not require an answer. As already indicated, Question 2 does not need to be answered, and the absence of Ella J. Disbrow, individually, as a party to this reservation does not permit an answer to questions 8 and 9.

In this opinion WHEELER, C. J., and HINMAN, J., concurred.