# Boston Safe Deposit & Trust Co. v. Fleming > Massachusetts Supreme Judicial Court · February 15, 1972 · 361 Mass. 172 URL: https://www.frixlaw.com/law-library/cases/9711708 ## Case - **Full name:** Boston Safe Deposit and Trust Company, Trustee, vs. Denise Fleming & Others - **Court:** Massachusetts Supreme Judicial Court - **Decided:** February 15, 1972 - **Citations:** 361 Mass. 172; 279 N.E.2d 342; 1972 Mass. LEXIS 869 - **Precedential status:** Published - **Opinion:** Dissent by Braucher - **Judges:** Tauro, Cutter, Spiegel, Reardon, Quirico, Braucher, Hennessey - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9711708 ## Opinion text Braucher, J. (dissenting, with whom Tauro, C.J., and Spiegel, J., join) I dissent from the decision of the court and from points 5 and 6 of the opinion. The testator at age sixty-eight left his property to the unknown “issue” of his unmarried daughter. If there were no “issue,” it was to go in equal shares to six named charities. So far as appears, he had never heard of any of the charities until the person who drew his will suggested them as reputable organizations. After his death his daughter married but had no children. When she was about forty, she and her husband adopted two children age one and six and reared the children in their household. Now the court holds that the testator left the property to the charities to the exclusion of his adoptive grandchildren. Commendably, the court avoids making any suggestion that it is carrying out the probable intention of the testator. Such a suggestion would outrage common sense and natural human feeling. The court suggests that there may have been “a considerable change in public *184 attitudes since 1899”; it does not and could not properly suggest that people in 1901 did not have natural human feelings like those we now have. Instead, the result is attributed to the “words or language in the pre-1958 form” of the statute, 1 to “the logic of our earlier cases,” and to “the explicit provision” of the 1958 statute limiting it to instruments executed in the future. Thus it is made to appear that the villain of the piece, who did not “give effect to the humanitarian legislative policy” of 1958 and 1969, is not the court. The statute in question is Pub. Sts. c. 148, § 8, derived from St. 1876, c. 213, § 9. That statute embodied an intelligible and defensible policy that, unless a contrary intention plainly appeared, “blood” relatives of a testator should take under words like “child” to the exclusion of children adopted by anyone but the testator himself. Incidentally, the statute eliminated claims by “children” adopted when they were forty years old, and avoided strange contentions based on hypothetical adoptions by infertile octogenarians. See Whitmore, The Law of Adoption in the United States and Especially in Massachusetts (1876), preface at v, 74, 77, 78n. There is not the slightest indication that anyone considered in 1876 the possibility of a contest between adopted children and charities claiming a gift in default of issue. As applied to a contest between a charity and the usual adopted child, no one really suggests that the statute makes any sense at all. If someone had suggested such a case to the Legislature in 1876, any legislator would have been entitled to say, “But of course we don’t mean that.” Lawyers might have said that unless an exception was inserted some judge might be perversely literal. Lay legislators would then have shaken their heads at the *185 tendency of lawyers to distort language and make everything too complicated to understand. The same rule was adopted in other States, usually without such explicit statutory guidance. Numerous decisions in this State and elsewhere have applied the rule. All of our decisions, most of those elsewhere, and most of the learned commentaries on the subject have dealt with contests between adopted children and relatives by “blood.” None of our decisions has involved a contest between charities and adopted children. Counsel asserted to us in argument that they had found no case in which adopted children were unsuccessful in such a contest. 2 Adopted children prevailed against a university and a fraternal organization in Estate of Stanford, 49 Cal. 2d 120 , and Estate of Heard, 49 Cal. 2d 514 . Before 1958 there were no “pre-1958 decisions” in this court governing a contest between charities and adopted children. At the very least, the question now presented was fairly open. Beginning in 1958, the Legislature has twice repudiated the entire pre-1958 policy. This court decided that the 1958 statute, expressly prospective, should not be applied retroactively. Perkins v. New England Trust Co. 344 Mass. 287, 294 . But the present decision is entirely out of harmony with Moore v. Cannon, 347 Mass. 594, 596-597, 599 . There the gift was made by unprecedented language designating the statutory “heirs” of the adoptive parent. In the face of numerous decisions that adopted children were not “heirs,” we said we had been referred to “no Massachusetts case which deals with precisely this question.” We declined to “extend” the prior decisions to the new situation, since the statute reflected no continuing public policy. That was in a case where the contest was between “blood” relatives and an adopted child, where the intention imputed to the *186 testator by the statute, to exclude the adopted children, may once have been natural, normal and probable. Thus we refused to “extend” the statute to a situation squarely within the legislative language and purpose and within any purposive reading of our precedents. Now we “extend” the same statute to a case within no such purpose and no such precedent. By perverse literalism, we are breathing new life into a fossil statute and making it grow. One is tempted to say that in this case, “It plainly appears to have been the intention of the . . . testator to include an adopted child,” within the meaning of the governing statute. See St. 1876, c. 213, § 9. Such a reading would do no more violence to the statute than the perverse literalism of the court. But I agree with the court that humanitarian impulses and even common sense do not justify us in distortion of language. Realistically, neither the Legislature nor the testator had any intention at all with respect to the question facing us in this case. Compare Sewall v. Roberts, 115 Mass. 262, 278 . See Kales, Rights of Adopted Children, 9 Ill. L. Rev. 149, 159-160; Oler, Construction of Private Instruments Where Adopted Children Are Concerned, 43 Mich. L. Rev. 705 , 708-709. It is hard to believe that the person who drew the will, if he was a lawyer, would have deliberately selected the word “issue” to execute his client’s purpose to exclude an adopted child, especially since the words of the pre-1958 statute left open the possibility that a testator’s intention to include an adopted child might “plainly” appear from evidence outside the will. See Chase Manhattan Bank v. Mitchell, 53 N. J. 415, 418. Indeed, a widely used lawyers’ book, Crocker’s Notes on Common Forms, carried forward unchanged in the fourth edition (p. 458), published in 1902, the following passage from the third edition (p. 423), published in 1883: “It seems that under a devise to the ‘heirs’ or to the ‘children’ of A., a child adopted by A. under... [cited statutes] would take. See Sewall v. Roberts, 115 Mass. 262, 276 .” Something must be said about the “various uncertain *187 ties” which, according to the court’s opinion, might be raised by “departure . . . from the logic of our earlier cases”: (a) Past distributions. It is suggested that there may have been distributions to charities in similar circumstances, without a court order and without notice to adopted children. In all probability, no such distribution has ever been made in reliance on our decisions. Only one comparable reported case in Massachusetts has been found in which a trustee had made a distribution without court order, Old Colony Trust Co. v. Wood, 321 Mass. 519 . The property had been delivered to the adopted child shortly after the death of a life beneficiary in 1945, and suit to recover it was brought the same year. Most of the cases, notwithstanding the supposed certainty established by our prior decisions, have arisen on petitions for instructions or for declaratory relief. It seems safe to predict that after the present decision careful trustees will continue to seek the protection of court orders. The horrible example has arisen in New Jersey. In re Thompson, 53 N. J. 276. There income had been paid to a “blood” child of the testator’s daughter for about eighteen years, to the exclusion of her adopted child. When the court held, contrary to its prior decisions, that “issue” included the adopted child, it said (p. 299), “the adopted child properly does not assert a right to have the natural child account for moneys already received, or to surcharge the trustees for payments made. His claim is limited to what is undistributed.” No such problem is presented in the present case, and I think it undesirable to decide this case unjustly for fear that we might later have to decide a different case differently in order to decide it justly. (b) Tax deductions. We should not skew our law of property to save our citizens from paying what they owe by way of taxes. This case does not involve the hypothetical adoption of a child by an infertile octogenarian, destroying the deductibility of a charitable remainder. See Hamilton Natl. Bank v. United States, 236 F. Supp. *188 1005, 1016-1017 (E. D. Tenn.), affd. 367 F. 2d 554 (6th Cir.). For reasons indicated below, a decision for the adopted children in this case should be limited to like cases, where children are adopted at a tender age by the life beneficiary, the adoptive parent is of normal age for raising a family, and the child is reared in her household. Counsel for the adopted children here have convincingly demonstrated that a decision so limited would frustrate reasonable expectations of tax advantages only in a case where the life beneficiary had submitted to sterilization. Even if the decision were not so limited, because of the combined effect of statutes of limitations and changes in the tax laws, the tax impact would apparently be minimal except on a 1968 tax year. (c) Abnormal adoptions. This case does not present the problems of adoption by an aged person, adoption at the deathbed of the adoptive parent, or adoption of an adult. These problems, unlike that in the case at hand, were discussed at the time the 1876 statute was enacted. See Whitmore, The Law of Adoption in the United States and Especially in Massachusetts (1876) 74, 77, 78n. They have arisen. See Wyeth v. Stone, 144 Mass. 441 (adoption of widower of adoptive parent’s daughter); Old Colony Trust Co. v. Wood, 321 Mass. 519 (adoption of forty year old woman); Halbach, Rights of Adopted Children Under Class Gifts, 50 Iowa L. Rev. 971 , 988-989, 994-995; Oler, Construction of Private Instruments Where Adopted Children Are Concerned, 43 Mich L. Rev. 901, 923-926. We should deal with them in a sensible way. The perverse literalism of the present decision must not be carried over to such cases arising under wills drawn after 1958, and no one should rely on the present decision by adopting his grandmother in order to enable her to take as his "issue” under a post-1958 will. Counsel inform us, however, that the overwhelming majority of adoptions involve children under six, and there are almost none involving children over twelve. We should not deal unjustly with the thousands to avoid having to distinguish the one who is different. *189 (d) Unimagined cases. The court seems to think that what we say today in a known case might somehow control our decision unjustly or create new uncertainty in a case which is so different that no one has thought of it. If this is so, which seems doubtful, the risk seems to exist whichever way we decide. Hopefully the present decision is an example of the excessive devotion of lawyers and judges to their own linguistic prejudices rather than what is sometimes called retributive statutory interpretation. Otherwise, the court is saying to the Legislature, “We see what you meant, but you said more than that, and we must therefore carry out your unjust and irrational command in order to teach you to speak more clearly.” Either way the penalty falls on litigants born some forty years after the legislation, and it is imposed at a time when the legislators responsible are long since dead and the entire legislative policy has been abandoned. The linguistic problem is not new, nor is it limited to the law; it is inherent in the use of language to direct conduct: “Someone says to me: ‘Shew the children a game.’ I teach them gaming with dice, and the other says T didn’t mean that sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave me the order?” Wittgenstein, Philosophical Investigations (3d ed. 1969), 33e. “The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted, ‘that whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit.” United States v. Kirby, 7 Wall. 482, 487 . Bentham might have approved the present decision, if there were a procedure by which it could be reported to the Legislature with a view to retroactive curative legislation; otherwise, he said, “Human reason does not seem to be yet far enough advanced to warrant our laying the discretionary mode of interpretation under an absolute prohibition in all cases whatsoever.” See Bentham, Of Laws in General *190 (Hart ed. 1970) 161, 241. As applied to statutory language, Humpty Dumpty’s dictum overstates the case: “When I use a word, ... it means just what I choose it to mean — neither more nor less.” His second thought was better: “The question is,... which is to be master — that’s all.” Carroll, Through the Looking-Glass (Gardner anno. ed. 1960) 269. This court has a long and proud history of sympathetic treatment of legislation, of reading statutes in the light of their purposes, of attributing to the Legislature an intelligent and intelligible policy, of fitting new statutes into the existing framework of statutes and common law, in an effort to make a coherent whole. We should not depart from that tradition now. Since the present case is unprecedented, interstitial judicial legislation is unavoidable, however we decide. But a decision not based in any traditional understanding or legislative policy, or indeed in any rational and coherent purpose is unwarranted judicial legislation. Finally, it seems to me particularly unfortunate that this decision reverses the unanimous decision of a quorum of five members of this 'court. See the court’s fn. 1. This case does not involve any problem of past distributions made in reliance on our decisions, of reopening past tax returns, or of the imposition of unexpected tax liabilities. Neither the briefs nor the original opinion mentioned such problems, and they were called to our attention in requests for rehearing. As is indicated above, they are avoided if the decision is properly limited to the facts before us. They do not justify the substitution of an incorrect decision for a correct one, or the casting in doubt of the finality of all our decisions. The linguistic demonstration in the court’s fn. 8 is unconvincing. Statute 1876, c. 213, § 9, clearly recognized that “issue” sometimes included adopted children and sometimes did not. In a single gift to “issue” of a testator, per stirpes, the statute said that, in the absence of a contrary intention, a child adopted by the testator is his “issue,” but that an adopted grandchild is not, whether or not the adoptive parent was himself adopted. Melek v. Curators of Univ. of Mo. 213 Mo. App. 572 (gift to “children” of testator’s daughter did not include her adopted child), seems to be such a case. But compare St. Louis Union Trust Co. v. Greenough, 282 S. W. 2d 474, 482-483 (Mo.) (contrary result where gift is to “grandchild” or “descendant”). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9711708. Public record. Not legal advice.