Professor Weisberg
      Fall 2010

 Intestate Succession:
Statute of Distribution
Maud v. Catherwood
                             22 & 23 Car. II, c. 10
155 P. 2d 111                         FOR EDUCATIONAL USE ONLY
67 Cal.App.2d 636, 155 P.2d 111
(Cite as: 67 Cal.App.2d 636...
155 P. 2d 111                         FOR EDUCATIONAL USE ONLY                        Maud v. Catherwood (cont’d)
67 Cal.A...
Maud v. Catherwood (cont’d)

                              B. CLINTON AND AZALEA HASTINGS

         Clara L.    Marsh...
155 P. 2d 111                         FOR EDUCATIONAL USE ONLY                       Maud v. Catherwood (cont’d)
67 Cal.Ap...
8 Cal.Rptr.3d 541                       FOR EDUCATIONAL USE ONLY                            Estate of Ford (cont’d)
32 Cal...
8 Cal.Rptr.3d 541                       FOR EDUCATIONAL USE ONLY                            Estate of Ford (cont’d)
32 Cal...
8 Cal.Rptr.3d 541                       FOR EDUCATIONAL USE ONLY                            Estate of Ford (cont’d)
32 Cal...
8 Cal.Rptr.3d 541                       FOR EDUCATIONAL USE ONLY                            Estate of Ford (cont’d)
32 Cal...
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  1. 1. WILLS & TRUSTS Professor Weisberg Fall 2010 Intestate Succession: Statute of Distribution Maud v. Catherwood Estate of Ford
  2. 2. STATUTE OF DISTRIBUTION, 1670 22 & 23 Car. II, c. 10 V. PROVIDED ALWAYS, AND BE IT ENACTED BY THE AUTHORITY AFORESAID, That all ordinaries and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following; that is to say, (2) one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions, to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his life-time, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made: (3) and in case any child, other than the heir at law, who shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his life-time by portion not equal to the share which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate, to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the life-time of the intestate, as shall make the estate of all the said children to be equal as near as can be estimated: (4) but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent, or otherwise from the intestate. VI. AND IN CASE THERE BE NO CHILDREN NOR Any legal representatives of them, then one moiety of the said estate to be allowed to the wife of the intestate, the residue of the estate to be distributed equally to every of the next of kindred of the intestate, who are in equal degree and those who legally represent them. VII. PROVIDED, That there be no representations admitted among collaterals after brothers= and sisters= children; (2) and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; (3) and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid, and in no other manner whatsoever. 1
  3. 3. 155 P. 2d 111 FOR EDUCATIONAL USE ONLY 67 Cal.App.2d 636, 155 P.2d 111 (Cite as: 67 Cal.App.2d 636, 155 P.2d 111) District Court of Appeal, First District, Division 1, They are: Joseph Fiske Catherwood, great California. grandchild, only son of Charles C. Catherwood, MAUD deceased, one of the three children born to Clara L. v. Hastings Catherwood; Louise C. Maud, the only CATHERWOOD et al. surviving child of Clara L. Hastings Catherwood; Jan Civ. No. 12727. Casimir Lewenhaupt, great grandchild, the only child of Azalea Lewenhaupt, the only child of Flora Jan. 24, 1945. Hastings Keyes; Ethel H. Crane, grandchild, the only Hearing Denied March 22, 1945. surviving child of three born to Charles F. D. Hastings; Harry C. Hastings and Elizabeth Parker WARD, Justice. Hastings, grandchildren, the children of Robert Paul Hastings. The attached chart will serve as a This is an appeal from an interlocutory decree in an convenience. Thereon the names of the grandchildren action for the partition of real property situated in are underlined twice; the great grandchildren, thrice. several counties. An agreed statement constitutes the record on appeal. The trial court divided the estate into four parts and determined the interest of each grandchild The parties appearing in the trial court and each great grandchild by representation, so that consisted of plaintiff, Louise C. Maud, a grandchild, Louise C. Maud, Joseph Fiske Catherwood, Harry C. and named as defendants, certain grandchildren, the Hastings and Elizabeth Parker Hastings or their trustees for certain other grandchildren, and two great individual trustees were each decreed on eighth grandchildren, descendants of S. Clinton Hastings, interest and Jan Casimir Lewenhaupt and Ethel H. deceased, who at one time was Chief Justice of the Crane were each decreed a fourth interest. The Supreme Court of Iowa, and thereafter the first Chief plaintiff and all of the defendants, with the exception Justice of the Supreme Court of the State of of Ethel H. Crane and Jan Casimir Lewenhaupt, California, and subsequently the founder and appear herein as appellants. benefactor of a California college of the law. The question presented is at what generation In 1874 Judge Hastings set up a trust inter the estate should be divided. Appellants contend that vivos of certain real property for the benefit of it should be divided into six parts; that is, at the level himself, his wife Azalea, and their seven children. He of grandchildren rather than at the level of children, provided for the termination of the trust upon the and that the two great grandchildren should take the death of the last survivor of the beneficiaries. The last shares of their parents by right of representation. survivor was his daughter Ella, who died about sixty- Under this method the grandchildren and the great eight years later. The following clause of the trust grandchildren would each receive a like amount, indenture then became operative: 'Upon the death of namely, one-sixth. the last survivor of all the above enumerated beneficiaries, to-wit: the party of the first part, Azalea The question must be determined in Hastings, his wife, Marshall, Clara L., Charles F. D., accordance with the provisions of the trust Robert Paul, Flora, Ella and Lillie, the trust herein instrument, and application of Probate Code §§ 222 expressed shall cease, and all the estate, both real and and 250. [The court held that there was nothing in personal, then in the hands of the Trustee, shall be the language of the trust instrument to call for per distributed, partitioned and conveyed to the then capita distribution to grandchildren and then turned to living lineal descendants of the party of the first part the meaning of the statute of descent.] in fee, each of said descendants taking such parts or portions as they would respectively have been The statutes directly controlling are Probate entitled to as heirs at law of the party of the first part Code §§ 222 and 250, which provide respectively: 'If had he himself been the last survivor of the said the decedent leaves no surviving spouse, but leaves beneficiaries last above enumerated.' issue, the whole estate goes to such issue; and if all of the descendants are in the same degree of kindred to Four of Judge Hastings' nine grandchildren the decedent they share equally, otherwise they take and two of his great grandchildren survived Ella. by right of representation. ' 'Inheritance or succession 2
  4. 4. 155 P. 2d 111 FOR EDUCATIONAL USE ONLY Maud v. Catherwood (cont’d) 67 Cal.App.2d 636, 155 P.2d 111 (Cite as: 67 Cal.App.2d 636, 155 P.2d 111) 'by right of representation' takes place when the another in uninterrupted sequence. Once it is descendants of a deceased person take the same share determined that descendants are not of equal degree it or right in the estate of another that such deceased is necessary to determine the amount each is entitled person would have taken as an heir if living. A to per stirpes. . . . posthumous child is considered as living at the death of the parent.' We will first consider appellants' The attached chart is a good example of the contention that under the above Probate Code necessity of going to the root. sections the grandchildren take per capita. There is quite a difference in distributing property to next of [see next page] kin in equal degree and in distributing the property equally to kin of unequal degree. It is the latter method that must be adopted as applicable to the facts of this case if appellants are to prevail. It is not necessary to consider all of the possible contingencies that may be suggested or that might have arisen had all of the children died leaving issue, particularly if some had only one child and others more than one. Likewise, it is not necessary to consider whether upon the death of the children, all of the nine grandchildren being then living, the grandchildren would have been entitled to share equally irrespective of parentage. We are not presented with such facts. It is sufficient to say that any strict and fast rule providing distribution to the nearest degree of lineal kindred after the first degree may work out a seeming injustice to a grand, or great grand, or great great, grandchild, depending upon the number of issue and the deaths that may intervene. We may accept the language of section 222 as directing that the estate be shared per capita if all of the descendants are of equal degree of kindred and we may not question the wisdom of the Legislature in so providing, but likewise we must bow to legislative direction when we are told that if the descendants are not of equal degree of kindred 'they take by right of representation.' To take per capita all must be in the class or degree of next of kin. (Am.Jur.Cum.Supp. to Vol. 16 (Descent and Distribution), § 42. 'Succession to estates is purely a matter of statutory regulation, which cannot be changed by courts.' (In re Ingram, 78 Cal. 586, 21 P. 435, 12 Am.St.Rep. 80. There is no direct authority in California on the question involved herein except that of Estate of Healy, 176 Cal. 244, 168 P. 124, which deals with collateral kindred. Our statute, sec. 222, provides that if there is no spouse, but issue, the whole of the estate goes to such issue to be shared equally, but only in the event that all of the descendants (in this case grandchildren and great grandchildren) are of equal degree of kindred, otherwise they (all of the descendants, the grandchildren and great grandchildren) take by right of representation. Succession by right of representation as used in section 250 means a substitution of one or more for 3
  5. 5. Maud v. Catherwood (cont’d) B. CLINTON AND AZALEA HASTINGS Clara L. Marshall Flora Charles F.D. Lillie Robert Paul Ella (Catherwood) (Keyes) Louise C. Jennie S. Charles C. Azalea Hoyt D. Seranus C. Ethel H. Harry C. Elizabeth Maud _ Catherwood Catherwood Lewenhaupt Hastings Hastings Crane Hastings Parker Hastings_ Joseph Fiske Jan Casimir Catherwood Lewenhaupt 4
  6. 6. 155 P. 2d 111 FOR EDUCATIONAL USE ONLY Maud v. Catherwood (cont’d) 67 Cal.App.2d 636, 155 P.2d 111 (Cite as: 67 Cal.App.2d 636, 155 P.2d 111) Referring to the manner in which that all such issue must take according to the descendants may share in an estate, section 222 uses right of representation. ' the word 'they.' When read in conjunction with the It appears that in the Balch case the court gave the provisions of section 250, namely, 'such deceased statute the construction which the court thought the person [such child] would have taken as an heir if Legislature intended instead of following and living', it requires that we start with a child of Judge construing the language of the statute. Healey v. Hastings. The grammatical propriety of this Cole, 95 Me. 272 49 A. 1065, is also cited. Maine construction is admitted in the case of Balch v. Stone, was merely following the interpretation given by its 149 Mass. 39, 20 N.E. 322, mainly relied upon by mother state in Balch v. Stone, supra. The error appellants. . . . appearing in the Massachusetts cases does not require that we should likewise adopt an incorrect Appellants' line of decisions headed by interpretation. Green v. Hussey, 228 Mass. 537, 117 N.E. 798, may at first reading seem to be in point as the Finally, appellants urge that sections 222 Massachusetts statute is similar to that of California. and 250 should be construed to make the provision In that case the court held that the essential words of 'fair.' Undoubtedly appellants mean fair as applied to the will followed the statute and that, the statute their view of the facts and the law of this case. If having been construed in Balch v. Stone, supra, and there is unfairness in the rule, we are reminded that followed in other cases, no sufficient reason was ''Succession to estates is purely a matter of statutory advanced why the previous decisions should not be regulation, which cannot be changed by courts." followed. The only Massachusetts case necessary to (Estate of Nigro, 172 Cal. 474, 156 P. 1019, 1020. analyze is Balch v. Stone, supra, since all other cases from that state followed the Balch case without Death and birth in varying numbers may further discussion of the soundness of the rule. In change the amount of the share to which a relative Massachusetts there was some historical background may succeed to an estate. In view of the possibility of to follow. This is not true in California. No previous a seeming unfairness, under any rule there should be decision in this state has followed the construction less claim of injustice if there is followed the adopted in Massachusetts and the decision itself requirement that the right of inheritance of a seems to admit its impropriety. In the Balch case, the representative descendant should be fixed by court said, 149 Mass. at page 42, 20 N.E. at page reference to the first generation common to each as 324: the criterion to determine the degree of relationship 'We are of the opinion that in the statute of of subsequent relatives in the descending line. 1805, and in the several revisions of the statutes which have since taken place, it was The right to succeed to an interest in an not the intention of the legislature to change estate of a deceased is not a natural right but one this rule of descent. The policy of our laws bestowed by law and accordingly subject to statutory is that heirs or next of kin, who are in equal authority. It appears that Judge Hastings adopted the degree of kindred to the intestate, inherit per California probate statutes which means that he capita in equal shares, while those in a more directed that the trust should be distributed according remote degree take per stirpes, or such to the statutes in force at the termination of the trust. portion as their immediate ancestor would inherit if living.' The trust indenture and the statutes in force But, 149 Mass. at page 40, 20 N.E. at page 323 the covering the facts in this case require that the court also said: interlocutory decree entered on December 20, 1943, 'If we regard merely the grammatical be affirmed. That is the order. construction of this provision, the more obvious meaning would seem to be that where an intestate leaves nephews and nieces, and also grandnephews or grandnieces, the nephews and nieces who are his next of kin would take per stirpes, and not per capita. The pronoun 'they,' following 'otherwise,' has no antecedent directly expressed, except 'all such issue,' and, if this is controlling, it would follow 5
  7. 7. 8 Cal.Rptr.3d 541 FOR EDUCATIONAL USE ONLY Estate of Ford (cont’d) 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541, 04 Cal. Daily Op. Serv. 363, 2004 Daily Journal D.A.R. 461, 2004 Daily Journal D.A.R. 1303 (Cite as: 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541) Supreme Court of California divorce. When Ford suffered a disabling stroke in ESTATE OF Arthur Patrick FORD, Deceased. 1989, Mary Catherine conferred with Bean and Terrold Bean, Petitioner and Appellant, Malpassi over Ford's care; Ford was placed in a board v. and care facility where Bean continued to visit him John J. Ford III et al., Objectors and regularly until his death in 2000. Respondents. No. S105508. Mary Catherine died in 1999. Bean and Malpassi arranged her funeral. Bean petitioned for Jan. 15, 2004. Malpassi to be appointed Ford's conservator, and As Modified on Denial of Rehearing Feb. 4, 2004. with Malpassi's agreement Bean obtained a power of attorney to take care of Ford's affairs pending WERDEGAR, J. establishment of the conservatorship. Bean also administered Mary Catherine's estate, which was Terrold Bean claims the right to inherit the distributed to the Ford conservatorship. When a intestate estate of Arthur Patrick Ford as Ford's decision was needed as to whether Ford should equitably adopted son. . . . Born in 1953, Bean was receive medical life support, Malpassi consulted with declared a ward of the court and placed in the home Bean in deciding he should. When Ford died, Bean of Ford and his wife, Kathleen Ford, as a foster child and Malpassi arranged the funeral. in 1955. Bean never knew his natural father, whose identity is uncertain, and he was declared free of his The Fords never petitioned to adopt Bean. mother's control in 1958, at the age of four. Bean Mrs. Ford told Barbara Carter, a family friend, that lived continuously with Mr. and Mrs. Ford and their "they wanted to adopt Terry," but she was "under the natural daughter, Mary Catherine, for about 18 years, impression that she could not put in for adoption until Mrs. Ford's death in 1973, then with Ford and while he was in the home." She worried that if Bean Mary Catherine for another two years, until 1975. was removed during the adoption process he might be put in "a foster home that wasn't safe." During part of the time Bean lived with the Fords, they cared for other foster children and Ford's nearest relatives at the time of his received a county stipend for doing so. Although the death were the two children of his predeceased Fords stopped taking in foster children after Mrs. brother, nephew John J. Ford III and niece Veronica Ford became ill with cancer, they retained custody of Newbeck. Neither had had any contact with Ford for Bean. The last two other foster children left the home about 15 years before his death, and neither attended around the time of Mrs. Ford's death, but Bean, who his funeral. John J. Ford III filed a petition to at 18 years of age could have left, stayed with Ford determine entitlement to distribution, listing both and Mary Catherine. himself and Newbeck as heirs. Bean filed a statement of interest claiming entitlement to Ford's Bean knew the Fords were not his natural entire estate under Probate Code sections 6454 (foster parents, but as a child he called them "Mommy" and child heirship) and 6455 (equitable adoption). . . . "Daddy," and later "Mom" and "Dad." Joan Malpassi, Mary Catherine's friend since childhood and later [The superior court ruled against Bean. Section 6454 administrator of Ford's estate, testified that Bean's delineates the circumstances in which a foster parent relationship with Mary Catherine was "as two or stepparent is deemed a parent for the purpose of siblings" and that the Fords treated Bean "more like succession, requiring both a personal relationship Mary rather than a foster son, like a real son was my beginning during the child’s minority and enduring observation." Mary Catherine later listed Bean as her for the child’s and parent’s joint lifetimes, and a legal brother on a life insurance application. barrier but for which the foster parent or stepparent would have adopted the child. Section 6455 pertains Bean remained involved with Ford and to equitable adoption and prvides in full: “Nothing in Mary Catherine even after leaving the Ford home and this chapter affects or limits application of the marrying. Ford loaned Bean money to help furnish judicial doctrine of equitable adoption for the benefit his new household and later forgave the unpaid part of the child or the child’s issue.” The trial court held of the debt when Bean's marriage was dissolved. that Probate Code section 6454’s requirement of a Bean visited Ford and Mary Catherine several times legal barrier to adoption was unmet, since the Fords per year both during his marriage and after his could have adopted Bean after 6
  8. 8. 8 Cal.Rptr.3d 541 FOR EDUCATIONAL USE ONLY Estate of Ford (cont’d) 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541, 04 Cal. Daily Op. Serv. 363, 2004 Daily Journal D.A.R. 461, 2004 Daily Journal D.A.R. 1303 (Cite as: 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541) his mother’s parental rights were terminated in 1958. their adopted daughter. As a child, the daughter The trial court also found that the doctrine of helped them in their business, and even after her equitable adoption was inapplicable because there marriage they remained "exceedingly close." was no clear and convincing evidence of “an attempt to adopt.”] Citing Estate of Radovich, supra, 48 Cal.2d 116, 308 P.2d 14, the Rivolo court held it "well Bean appealed only on the equitable established that equity will specifically enforce an adoption issue. The Court of Appeal affirmed. . . . oral contract to adopt" and found that the record "establishes the existence of a contract of adoption I. Criteria for Equitable Adoption and respondent's part performance thereof by clear, convincing and unequivocal evidence. It is In its essence, the doctrine of equitable uncontroverted that the respondent was at all times adoption allows a person who was accepted and regarded and treated as the adopted daughter of the treated as a natural or adopted child, and as to whom Rivolos; that they told her and others on numerous adoption typically was promised or contemplated but occasions that she was legally adopted and would be never performed, to share in inheritance of the foster their sole heir." (Estate of Rivolo, supra, 194 parents' property. The parents of a child turn him Cal.App.2d at p. 777, 15 Cal.Rptr. 268.) "[U]nder over to foster parents who agree to care for him as if the circumstances, equity demands recognition of her he were their own child. Perhaps they also agree to lifelong status as an adopted child of Frank Rivolo adopt him. They do care for him, support him, and her inheritance rights [citations]." (Id. at p. 778, educate him, and treat him in all respects as if he 15 Cal.Rptr. 268.) were their child, but they never adopt him. Upon their death he seeks to inherit their property on the Estate of Wilson (1980) 111 Cal.App.3d theory that he should be treated as if he had been 242, 168 Cal.Rptr. 533 also presented the question of adopted. Many courts would honor his claim, at least intestate succession from the adoptive parent. The under some circumstances, characterizing the case as child, born in a home for unwed mothers, was placed one of equitable adoption, or adoption by estoppel, or with foster parents who petitioned to adopt him. The virtual adoption, or specific enforcement of a contract adoption petition was dismissed, however, because to adopt." (Clark, The Law of Domestic Relations in the natural mother's consent could not be obtained; the United States (2d ed.1988) § 20.9, p. 925.) The although the court record refers to an "abandonment doctrine is widely applied to allow inheritance from petition ... to be filed," the foster parents did not the adoptive parent: at least 27 jurisdictions have so pursue that remedy and apparently made no further applied the doctrine, while only 10 have declined to efforts to adopt. They nonetheless told the child he recognize it in that context.[2] was adopted and treated him in all respects as their son; their relationship remained warm and familial FN2. In California, at least, adoption itself is until the deaths of both parents. (Id. at pp. 248-249, "purely statutory in origin and nature." The 168 Cal.Rptr. 533.) Following both Estate of Rivolo effect of an equitable adoption finding, and Estate of Radovich, the appellate court regarded therefore, is limited to the child's inheritance the issue as one of "the right of an equitably adopted rights and does not in other respects equate child to inherit by virtue of contract" (Estate of the child's rights with those of a statutorily Wilson, supra, at p. 247, 168 Cal.Rptr. 533) and adopted child. found substantial evidence "that, according to the above-noted authority, the Wilsons and Keith had . . . Estate of Rivolo (1961) 194 entered into a contract of adoption which was Cal.App.2d 773, 15 Cal.Rptr. 268 presented the issue faithfully adhered to by them" (id. at p. 249, 168 in the straightforward context of intestate succession Cal.Rptr. 533). . . . from the adoptive parent. The child was an eight- year-old orphan when the foster parents took her in Estate of Bauer (1980) 111 Cal.App.3d 554, and "told [her] that she would live with them and be 168 Cal.Rptr. 743, . . . aptly summarized the their little girl," an arrangement she said pleased her. doctrine as it had developed in California: (Id. at p. 775, 15 Cal.Rptr. 268.) The foster parents "[E]quitable adoption requires some form of took the child to the courthouse, where they took out agreement to adopt, coupled with subsequent letters of guardianship but told the child she was objective conduct indicating mutual recognition of an being adopted. Thereafter they referred to her as adoptive parent and child relationship to such an 7
  9. 9. 8 Cal.Rptr.3d 541 FOR EDUCATIONAL USE ONLY Estate of Ford (cont’d) 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541, 04 Cal. Daily Op. Serv. 363, 2004 Daily Journal D.A.R. 461, 2004 Daily Journal D.A.R. 1303 (Cite as: 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541) extent that in equity and good conscience an adoption of intestate succession. should be deemed to have taken place." (Id. at p. 560, 168 Cal.Rptr. 743.). . . In addition, a rule looking to the parties' overall relationship in order to do equity in a given As reflected in this summary, California case, rather than to particular expressions of intent to decisions have explained equitable adoption as the adopt, would necessarily be a vague and subjective specific enforcement of a contract to adopt. Yet it has one, inconsistently applied, in an area of law where long been clear that the doctrine, even in California, "consistent, bright-line rules" are greatly needed. rested less on ordinary rules of contract law than on Such a broad scope for equitable adoption would considerations of fairness and intent. . . . leave open to competing claims the estate of any foster parent or stepparent who treats a foster child or Bean urges that equitable adoption be stepchild lovingly and on an equal basis with his or viewed not as specific enforcement of a contract to her natural or legally adopted children. A broad adopt, but as application of an equitable, doctrine of equitable adoption would also render restitutionary remedy he has identified as quasi- section 6454, in practice, a virtual nullity, since contract or, as his counsel emphasized at oral children meeting the familial-relationship criteria of argument, as an application of equitable estoppel that statute would necessarily be equitable adoptees principles. While we have found no decisions as well. articulating a quasi-contract theory, courts in several states have, instead of or in addition to the contract While a California equitable adoption rationale, analyzed equitable adoption as arising from claimant need not prove all the elements of an "a broader and vaguer equitable principle of enforceable contract to adopt, therefore, we conclude estoppel." (Clark, The Law of Domestic Relations in the claimant must demonstrate the existence of some the United States, supra, at p. 926.) Bean argues Mr. direct expression, on the decedent's part, of an intent Ford's conduct toward him during their long and to adopt the claimant. This intent may be shown, of close relationship estops Ford's estate or heirs at law course, by proof of an unperformed express from denying his status as an equitably adopted child. agreement or promise to adopt. But it may also be demonstrated by proof of other acts or statements For several reasons, we conclude the directly showing that the decedent intended the child California law of equitable adoption, which has to be, or to be treated as, a legally adopted child, such rested on contract principles, does not recognize an as an invalid or unconsummated attempt to adopt, the estoppel arising merely from the existence of a decedent's statement of his or her intent to adopt the familial relationship between the decedent and the child, or the decedent's representation to the claimant claimant. The law of intestate succession is intended or to the community at large that the claimant was the to carry out " 'the intent a decedent without a will is decedent's natural or legally adopted child. (See, e.g., most likely to have had.' " (Estate of Griswold Estate of Rivolo, supra, 194 Cal.App.2d at p. 775, 15 (2001) 25 Cal.4th 904, 912, 108 Cal.Rptr.2d 165, 24 Cal.Rptr. 268 [parents who orally promised child she P.3d 1191.) The existence of a mutually affectionate would "be their little girl" later told her and others relationship, without any direct expression by the they had adopted her]; Estate of Wilson, supra, 111 decedent of an intent to adopt the child or to have Cal.App.3d at p. 248, 168 Cal.Rptr. 533 [petition to him or her treated as a legally adopted child, sheds adopt filed but dismissed for lack of natural mother's little light on the decedent's likely intent regarding consent]; Estate of Reid (1978) 80 Cal.App.3d 185, distribution of property. While a person with whom 188, 145 Cal.Rptr. 451 [written agreement with adult the decedent had a close, caring and enduring child].) relationship may often be seen as more deserving of inheritance than the heir or heirs at law, whose Thus, in California the doctrine of equitable personal relationships with the decedent may have adoption is a relatively narrow one, applying only to been, as they were here, attenuated, equitable those who " ' "though having filled the place of a adoption in California is neither a means of natural born child, through inadvertence or fault compensating the child for services rendered to the [have] not been legally adopted," ' [where] the parent nor a device to avoid the unjust enrichment of evidence establishes an intent to adopt." (Estate of other, more distant relatives who will succeed to the Furia, supra, 103 Cal.App.4th at p. 5, 126 estate under the intestacy statutes. Absent proof of Cal.Rptr.2d 384, italics added.) In addition to a an intent to adopt, we must follow the statutory law statement or act by the decedent unequivocally 8
  10. 10. 8 Cal.Rptr.3d 541 FOR EDUCATIONAL USE ONLY Estate of Ford (cont’d) 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541, 04 Cal. Daily Op. Serv. 363, 2004 Daily Journal D.A.R. 461, 2004 Daily Journal D.A.R. 1303 (Cite as: 32 Cal.4th 160, 82 P.3d 747, 8 Cal.Rptr.3d 541) evincing the decedent's intent to adopt, the claimant must show the decedent acted consistently with that intent by forming with the claimant a close and enduring familial relationship. That is, in addition to a contract or other direct evidence of the intent to adopt, the evidence must show "objective conduct indicating mutual recognition of an adoptive parent and child relationship to such an extent that in equity and good conscience an adoption should be deemed to have taken place." (Estate of Bauer, supra, 111 Cal.App.3d at p. 560, 168 Cal.Rptr. 743.). . . . Although the evidence showed the Fords and Bean enjoyed a close and enduring familial relationship, evidence was totally lacking that the Fords ever made an attempt to adopt Bean or promised or stated their intent to do so; they neither held Bean out to the world as their natural or adopted child (Bean, for example, did not take the Ford name) nor represented to Bean that he was their child. Mrs. Ford's single statement to Barbara Carter was not clear and convincing evidence that Mr. Ford intended Bean to be, or be treated as, his adopted son. Substantial evidence thus supported the trial court, which heard the testimony live and could best assess its credibility and strength, in its finding that intent to adopt, and therefore Bean's claim of equitable adoption, was unproven. . . . 9