Estate of Russell

Garth V. Lacey for Claimant and Appellant.

No appearance for Petitioner and Respondent.

Thompson & Hubbard, Ralph W. Thompson and Russell A. Thomsen for Claimant and Respondent.

OPINION

MOLINARI, P.J.

This appeal presents a question of first impression in this state. It concerns the effect of adoption out of a testator's family of a great-grandchild who, except for his adoption, would be included in a description of the class of remaindermen of a testamentary trust. Stated more precisely, the issue is as follows: Where a testamentary trust provides for distribution to a class of remaindermen described as the "children or issue surviving" of certain primary beneficiaries with life estates therein, does the class of remaindermen include a child who was born after the testator's death and who was adopted by strangers in blood to the testator before the date of the termination of the trust, or is such person excluded from said class of remaindermen by virtue of the fact of his adoption out of the family? We have concluded that the adoption results in such exclusion. Accordingly, the order of the trial court must be affirmed.

Testator Harvey A. Russell died on May 19, 1960,…