
    In the Matter of the Estate of Jessie C. Best, Deceased. Anthony R. Reid, Appellant; David L. McCollum, Respondent.
    Argued September 4, 1985;
    decided October 24, 1985
    
      POINTS OF COUNSEL
    
      Devereux Milbum, Richard B. Covey, Dan T. Hastings and R. Demarest Duckworth, III, for appellant.
    I. If a child born out of wedlock is presumed to be "issue” of his natural ancestors, such presumption should not be applied retroactively to defeat a testator’s intent. (Matter of Thall, 18 NY2d 186; Matter of Schwartz, 92 Misc 2d 40; Matter of Underhill, 176 Misc 737; Hiser v Davis, 234 NY 300; Matter of Hoffman, 53 AD2d 55; Matter of Lyden, 96 Misc 2d 920; Matter of Leventritt, 92 Misc 2d 598; Gager v White, 53 NY2d 475.) II. The courts below applied an improper test in weighing the evidence of decedent’s intent. (Dwight v Gibb, 145 App Div 223; Gelston v Shields, 16 Hun 143, 78 NY 275; Matter of Fabbri, 2 NY2d 236.) III. Decedent did not actually intend to include her daughter’s adopted-out son as "issue” in her will. IV. The rule of construction should be that an adopted child whose court adoption records are sealed is presumed to be excluded from the meaning of "issue” of his natural ancestors unless a contrary intent is shown. (Matter of Walker, 64 NY2d 354; Matter of Bissell, 74 Misc 2d 330.)
    
      David S. J. Neufeld for respondent.
    I. David McCollum is an "issue” of his natural mother notwithstanding that he may have been born out of wedlock. (Matter of Hoagland, 125 Misc 376; Matter of Hoffman, 53 AD2d 55; Levy v Louisiana, 391 US 68.) II. David McCollum’s right to inherit from and through his natural kindred was not affected by his adoption. (Matter of Thorne, 155 NY 140; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Landers, 100 Misc 635; Matter of Gourlay, 173 Misc 930; Matter of Bissell, 74 Misc 2d 330.) III. Where the language in a will is clear and definite extrinsic evidence cannot be considered and the bequest must be enforced. (Matter of Watson, 262 NY 284; Matter of Symonds, 79 AD2d 24; Matter of Blodgett, 168 Misc 898; People ex rel. Sibley v Sheppard, 54 NY2d 320; Matter of Layton v Foster, 61 NY2d 747; Hollis v Drew Theol. Seminary, 95 NY 166.) IV. The interest of David McCollum as beneficiary of the trust created pursuant to paragraph Tenth of the decedent’s will was an issue previously embraced and decided within the executor’s final accounting. (Childs v Childs, 150 App Div 656; Kret v Brookdale Hosp. Med. Center, 93 AD2d 449.)
   OPINION OF THE COURT

Titone, J.

The question presented is whether a child born out of wedlock, who is adopted out of his biological family at birth, is entitled to a share of a trust estate devised by his biological grandmother to her daughter’s issue. The Surrogate’s Court entered a decree in the child’s favor, which has been unanimously affirmed by the Appellate Division. We granted leave to appeal and now reverse.

Jessie C. Best died in 1973, leaving a will which provided for a residuary trust. Her daughter, Ardith Reid, was designated as the income beneficiary. Upon Ardith’s death, the trustees were directed to "divide [the] trust fund into as many shares or parts as there shall be * * * issue * * * and to continue to hold each of such shares or parts in trust during the life of one of said persons.” The remainder is to be paid to the surviving descendants at the latest possible date consistent with the Rule against Perpetuities.

Initially, the executors of the Best will, who are also the trustees of the residuary trust, believed that Ardith had only a single son, appellant Anthony R. Reid, born in 1963. In 1976, however, they were informed that Ardith had given birth to a child out of wedlock in 1952, and that the child had been immediately placed with an agency for adoption. Ardith confirmed that the information was accurate.

Concluding that it was necessary to cite this unknown child in order to complete jurisdiction in a proposed accounting proceeding, the fiduciaries obtained Ardith’s authorization to ascertain the child’s identity and whereabouts. Attorneys contacted the adoption agency, which, though finding the request "unusual,” took the position that, given the apparently large value of the beneficial interest involved, the question of disclosure should be left to the discretion of the adoptive parents. A caseworker was dispatched and the adoptive parents subsequently revealed that the child’s present identity was David Lawson McCollum, and that requisite proof of natural ancestry could be obtained in a sealed file at the Surrogate’s Court, Nassau County.

After Ardith’s death, the trustees commenced this construction proceeding, seeking to determine the proper secondary income beneficiary or beneficiaries, the accounting proceeding having left the question open. On cross motions for summary judgment, the Surrogate’s Court, Westchester County, directed that McCollum be included as an issue of Ardith Reid and, as such, a beneficiary under the trust. The Surrogate declined to apply the common-law presumption that the term issue referred only to descendants born in wedlock, in favor of a rule espoused by the Appellate Division, First Department, which presumes that issue includes descendants born both in and out of wedlock (Matter of Hoffman, 53 AD2d 55). In addition, the Surrogate construed Domestic Relations Law § 117, which describes the consequences attached to an order of adoption, as cutting off only the right to intestate descent and not affecting the right to take a class gift under the will of a biological ancestor. The Surrogate recognized that this holding would create a myriad of practical difficulties and might lead to a breach of the privacy of adoption proceedings, but believed that the solution was legislative. The Appellate Division unanimously affirmed in a Per Curiam opinion, essentially adopting the Surrogate’s reasoning. We now reverse and remit for the entry of a decree in conformity with this opinion (SCPA 2702).

Use of the term issue in a dispositive instrument has always been viewed as ambiguous, with its meaning depending on the intent of the decedent as derived from the content of the entire will (Palmer v Horn, 84 NY 516, 519; 5 American Law of Property §§ 21.49,22.36 [1952 Casner ed]; 2 Simes and Smith, Future Interests § 738 [2d ed]). Shaped by the mores of the day, the common-law courts tended to give the term a restrictive interpretation (Bergin and Haskell, Preface to Estates in Land and Future Interests, at 232 [2d ed]), and viewed a child born out of wedlock as the "child of nobody” (5 American Law of Property § 22.33, at 325 [1952 Casner ed]). Absent a contrary indication in the will, such a child was deemed to be presumptively excluded from taking a class gift to issue (see, e.g., Hiser v Davis, 234 NY 300, 305; Matter of Underhill, 176 Misc 737, 739 [Foley, S.]; 9 Rohan, NY Civ Prac, EPTL ¶ 1-2.10 [3]; Restatement of Property § 286 [1]; § 292).

EPTL 1-2.10, added in 1966, defines "issue” as descendants in any degree from a common ancestor, unless a contrary intention is indicated, and specifically includes children adopted into the family, thus resolving a conflict which had existed in decisional law (see, 2 Simes and Smith, Future Interests § 738, n 40 [2d ed]) in favor of inclusion (9 Rohan, NY Civ Prac, EPTL ¶ 1-2.10 [2]; Note, Adopted Children as Issue — Settlor’s Intent, 27 Brooklyn L Rev 177). Other than that clarification, the Revisors’ Notes indicate that the section merely codifies decisional law (Revisors’ Notes to EPTL 1-2.10, McKinney’s Cons Laws of NY, Book 17B, p 22; see also, 9 Rohan, NY Civ Prac, EPTL ¶ 1-2.10 [1]; Rohan, Practice Commentary, McKinney’s Cons Laws of NY, Book 17B, EPTL 1-2.10, p 20).

Contemporary social mores and constitutional doctrine governing the rights of children born out of wedlock suggest that drafters now view the unmodified term issue to refer to children born both in and out of wedlock (see, Matter of Hoffman, 53 AD2d 55, supra; Matter of Lyden, 96 Misc 2d 920; Matter of Leventritt, 92 Misc 2d 598; Note, In Re Hoffman, 5 Hof L Rev 697, 703-704), and we now hold this to be a rebuttable rule of construction. Respondent, however, who was adopted out of his biological family shortly after birth and has full inheritance rights through his adoptive family (EPTL 1-2.10; Domestic Relations Law § 117), can reap no benefit from this change of constructional rules. Unlike the child born out of wedlock who, but for the abrogation of the common-law presumption of exclusion, would have no right to inherit as the issue of any parent, what respondent, in effect, seeks here is inheritance rights as the issue of both his biological and his adoptive parents.

Powerful policy considerations militate against construing a class gift to include a child adopted out of the family. In detailing adoption procedures (see, Domestic Relations Law art 7), the Legislature clearly intended that the adopted child be severed from the biological family tree and be engrafted upon new parentage (see, Matter of Cook, 187 NY 253, 260; Matter of "Wood” v "Howe”, 15 Misc 2d 1048, 1050). Recognition of a right to inherit class gifts from biological kindred would be inconsistent with the child’s complete assimilation into the adoptive family and thus contrary to legislative intent (see, Binavince, Adoption and the Law of Descent and Distribution: A Comparative Study and a Proposal for Model Legislation, 51 Cornell LQ 152, 165).

Moreover, in order to encourage the adoptive relationship to flourish and solidify without outside interference, the Legislature has directed that the confidentiality of adoption records be maintained (Domestic Relations Law § 114). This secrecy, which we have identified as vital and beneficial to the entire adoption process (Matter of Walker, 64 NY2d 354, 360-361; Matter of Linda F. M., 52 NY2d 236, 239 appeal dismissed sub nom. Mason v Abrams, 454 US 806; see also, Alma Socy. v Mellon, 601 F2d 1225, cert denied 444 US 995), would be easily breached if children who are adopted out of a family are presumed to be takers of class gifts from biological ancestors, as ascertaining whether rights of inheritance exist might well be good cause for access. This case itself is of moment for we can detect the hydraulic pressure faced by the adoption agency in passing on the request for disclosure.

Inclusion of adopted-out children within the ambit of class gifts would also undermine the stability of real property titles as well as other property rights passing under Surrogate’s Court decrees (see, former Surrogate Sobel’s comprehensive analysis in Matter of Flemm, 85 Misc 2d 855, 859, quoted with approval in Lalli v Lalli, 439 US 259, 270). Finality of such decrees could never be achieved because there would always lurk the possibility, no matter how remote, that a secret out-of-wedlock child had been adopted out of the family by a biological parent or ancestor of a class of beneficiaries. No search conducted by a personal representative would ever be complete and there is obviously no way to cite and serve an out-of-wedlock child who is adopted out of the family when the survivors may not even be aware of the person’s existence.

Domestic Relations Law § 117 certainly does not preserve the right to inherit a class gift in such circumstances. That section terminates all rights of intestate succession but does "not affect the right of any child to distribution of property under the will of his natural parents or their natural or adopted kindred” (Domestic Relations Law § 117 [2]). The evident purpose of the statutory provision, as expressed in the reports of the Bennett Commission on the Law of Estates, was "to place the adopted child for inheritance purposes in the bloodstream of his new family just as a natural child, and sever insofar as possible all connection with the natural family” (Second Report of Temporary State Commn on Modernization, Revision and Simplification of Law of Estates, 1963 NY Legis Doc, No. 19, at 25, 147, n; see also, Legislation, New York’s Law of Estates and Distribution: The New York Status of the Adopted Child, 38 St. John’s L Rev 380). Thus, while a child adopted into a family is to be presumed included within the term issue "[ujnless a contrary intention is indicated” (EPTL 1-2.10 [a]; see, Matter of Park, 15 NY2d 413; Note, 15 Buffalo L Rev 209; Note, 11 NYLF 522), a child adopted out of the family is not (see, Binavince, op. cit., 51 Cornell LQ 152, 164-173). Only if a child adopted out of the family is specifically named in a biological ancestor’s will, or the gift is expressly made to issue including those adopted out of the family, can the child take. In short, Domestic Relations Law § 117 does not mandate that such a child receive a gift by implication.

We are aware of the passage of a bill designed to overturn the Appellate Division and Surrogate’s Court holdings in this case as well as its subsequent veto by the Governor. The Governor’s veto rested upon ambiguities in the bill and the lack of consensus within the legal community as to the best approach to the question (Veto Message No. 106, 1984 NY Legis Ann, at 403). The Law Revision Commission, following a study, has recommended a new bill, which it has submitted for legislative consideration (1985 NY Legis Doc, No. 65 [N], 1985 McKinney’s Session Laws of NY, at — [Pamphlet No. 3, June 1985, at A-554]). (Cf. Uniform Adoption Act § 14 [9 ULA Master ed]; Uniform Probate Code § 2-109 [1] [8 ULA Master ed]; Ann., 96 ALR2d 639; Binavince, op. cit, 51 Cornell LQ 152.)

These developments, while of interest, are of no moment. Until this court has resolved an issue of first impression, legislative activity or inactivity does not constitute an endorsement of the result reached by other courts (see, Brooklyn Union Gas Co. v New York State Human Rights Appeal Bd., 41 NY2d 84, 90; cf. City of New York v Saper, 336 US 328, 338-340; Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 432-433). Moreover, statutory enactments governing decedents’ estates are generally not given a retrospective operation (McKinney’s Cons Laws of NY, Book 1, Statutes § 56; see, Monroney v Mercantile-Safe Deposit & Trust Co., 291 Md 546, 435 A2d 788). Any legislative solution would thus be incomplete and the damage we perceive would result to public policy would be irreparable.

For the reasons stated, the order of the Appellate Division should be reversed, with costs to all parties filing briefs, payable out of the estate, appellant’s motion for summary judgment granted, respondent’s motion for summary judgment denied, and the matter remitted to Surrogate’s Court, Westchester County, for the entry of a decree in accordance with this opinion.

Jasen, J.

(dissenting). I would hold that statutory law and the unqualified use of the term "issue” in the testatrix’s will compels the conclusion that her adopted-out grandson is entitled to an equal share of the trust fund the testatrix created under her will.

Adoption was unknown to the common law and is solely a creature of statute. (See, Matter of Robert Paul P., 63 NY2d 233, 237; Matter of Thorne, 155 NY 140, 143.) New York’s adoption laws, first enacted in 1873, initially provided that an adopted child had no right of inheritance from the adoptive parents (L 1873, ch 830, § 10). Several years later, adopted children were granted such rights in a statute which did not, however, deny any inheritance rights flowing from the natural parents (L 1887, ch 703). With the enactment of the Domestic Relations Law in 1896, the Legislaturc was explicit in providing that an adopted child’s "rights of inheritance and succession from his natural parents remain[ed] unaffected” (L 1896, ch 272, § 64). This statutory provision was, however, ultimately amended in 1963 when virtually all inheritances to an adopted child from the natural family were terminated (L 1963, ch 406, § 1). The Temporary State Commission on the Law of Estates which recommended the amendment noted that the underlying purpose of the statutory provision was "so far as possible” to place the adopted child within the bloodlines of his new family for inheritance purposes while severing such ties with his natural family. (See, L 1963, ch 406, at 1788, n.) Since that time, Domestic Relations Law § 117 (1) has included a provision that "[t]he rights of an adoptive child to inheritance and succession from and through his natural parents shall terminate upon the making of the order of adoption except as hereinafter provided.”

Because the laws regulating adoption and the rights of adopted children are entirely statutory and in derogation of the common law, the legislative provisions must be strictly construed. (Matter of Robert Paul P., supra, at p 238; Matter of Malpica-Orsini, 36 NY2d 568, 570; Carpenter v Buffalo Gen. Elec. Co., 213 NY 101, 108.) Consequently, the statutory termination of the adopted child’s inheritance rights from his natural family must be read narrowly in light of the common law which permitted no such result. Indeed, in 1966, the Domestic Relations Law was again amended in order explicitly to indicate the limited extent to which inheritance rights were terminated and, thereby, clearly to delimit the extent to which the common law had been altered by the 1963 amendment. Section 117 (2) has since provided that: "This section shall apply only to the intestate descent and distribution of real and personal property and shall not affect the right of any child to distribution of property under the will of his natural parents or their natural or adopted kindred whether such natural parent or kindred shall have died heretofore or shall die hereafter or under any inter vivas instrument heretofore or hereafter executed by such natural parents or his or her kindred.” (Emphasis added; L 1966, ch 14, § 1.) The limited purpose of the 1963 amendment was thus clarified upon the recommendation of the Temporary State Commission. The enactment of section 117 (2), as part of the 1966 "Act to amend the domestic relations law, in relation to intestate inheritance from and through an adopted child” (emphasis added), was expressly intended "to provide specifically that [section 117] does not affect any interest an adopted child might have under the will or inter vivas instrument of any member of his natural family, whether made before or after March 1,1964.” (See, L 1966, ch 14, at 14, n.)

Indeed, this court has recently emphasized, albeit in a different context, that section 117 was not intended to sever all ties between the adopted-out child and the natural family. In People ex rel. Sibley v Sheppard (54 NY2d 320, 325) we particularly noted that "the statute recognizes that [some] contacts may exist and that the natural relatives may desire to perpetuate the sense of family, for example, by bequeathing property to the adopted child (see Domestic Relations Law, §117, subd 2).” (Emphasis added.)1 would not, as the majority does, reconstrue section 117 so as to give an overly expansive reach to the provision in subdivision 1 which limits the adopted-out child’s right of inheritance while, simultaneously, giving little or no effect to subdivision 2 which preserves the right to receive under a will. Rather, inasmuch as section 117 (2) merely preserves a right which could not be alienated by means of adoption at common law, I believe it should be given a fuller application, more consistent with its expressly intended purpose.

The foregoing is particularly true under the facts of this case. The testatrix knew that her daughter gave birth to a nonmarital son who had been placed for adoption. Nevertheless, she included no provision in her will explicitly disinheriting this adopted-out grandson. To the contrary, she employed language which is strongly indicative of the opposite intention. The testamentary disposition in question provided that "[u]pan the death of my daughter” the trust was to continue during the life of "issue her surviving”. (Emphasis added.) The testatrix expressed no qualification limiting the "issue” for whose benefit the testamentary trust was to be created.

As is acknowledged by the majority, the intention of the testatrix is the most fundamental and critical factor in construing her testamentary provisions. (Matter of Cord, 58 NY2d 539, 544; Matter of Jones, 38 NY2d 189, 193; Matter of Watson, 262 NY 284, 293.) Here, the testatrix specifically employed the term "issue” without qualification, and there is no indication whatsoever that she intended, by the use of the word "issue” in the will, anything other than that term’s settled and customary meaning.

The EPTL defines "issue” without any restriction or exception for adopted-out children. The entire definition, as codified in EPTL 1-2.10 both at the present time and when the will was executed, provides that:

"(a) Unless a contrary intention is indicated:

"(1) Issue are the descendants in any degree from a common ancestor.

"(2) The terms 'issue’ and 'descendants’, in subparagraph (1), include adopted children.” (Emphasis added.)

The statutory definition is unambiguous and unqualified, and nothing in testatrix’s will renders it less so. "Issue” includes all descendants, and there is simply no language in the testatrix’s will indicating a "contrary intention”. No distinction is made in either the statutory definition or the testamentary language between adopted-out and all other children. No specific individual is named or explicitly excluded in the will. Despite the testatrix’s awareness of her adopted-out grandson, no provision whatsoever was made to treat him differently than her daughter’s other "issue surviving”. In my view, the testamentary language is sufficiently clear and unequivocal to preclude this court’s substitution of its own restrictive interpretation for a settled statutory meaning. (See, Matter of Watson, supra, at p 293.) Finally, the policy considerations invoked by the majority do not appear relevant under the circumstances presented here. While the confidentiality of adoption records is a genuine concern of both the Legislature and this court (see, Domestic Relations Law § 114; Matter of Walker, 64 NY2d 354, 360-361), the underlying purposes thus sought to be promoted are inapplicable to this case. The parties here have at all relevant times been aware of the identity and consanguinity of the testatrix’s adopted-out grandson. Indeed, he was informed of his relationship to the testatrix by both his natural mother and adoptive parents prior to the commencement of this proceeding. Moreover, he communicated with his natural mother prior to her decease.

The general policy of confidentiality of adoption records ought not to effectuate the denial of a lawful testamentary bequest to an adoptee whose adoption was known to the testatrix and about which the adoptee and all other interested parties are well aware. There is no need here for secrecy to protect the adoptee. Indeed, there is neither need nor request here to unseal adoption records, as the details relative to the adoption have all been stipulated. Inclusion of the testatrix’s adopted-out grandson within the class of her daughter’s "issue” requires absolutely no contravention of the public policy invoked by the majority. Thus, the testatrix’s testamentary language and the governing statutory provisions being clear, and no compromise of a countervailing public policy being required to give them effect, the testamentary disposition ought not to be defeated.

Accordingly, it is my view that the Surrogate’s construction of the term "issue” should not be disturbed, and the testatrix’s adopted-out grandson was correctly held to be a beneficiary of the testamentary trust. The order of the Appellate Division should be affirmed.

Chief Judge Wachtler and Judges Simons, Kaye and Alexander concur with Judge Titone; Judge Jasen dissents and votes to affirm in a separate opinion in which Judge Meyer concurs.

Order reversed, with costs payable out of the estate to all parties appearing separately and filing separate briefs, appellant’s motion for summary judgment granted, respondent’s motion for summary judgment denied, and matter remitted to Surrogate’s Court, Westchester County, for entry of a decree in" accordance with the opinion herein. 
      
      . Different considerations might apply in hybrid cases, such as where a child is adopted by two descendants in some degree from a biological parent or parents or by one such person and a spouse who is a total stranger to the family. That question is not before us and we express no opinion on it.
     
      
      . Without more there is no basis in the dissenters presumption that the testatrix intended to include the respondent, a child adopted out of the family, within a generic class entitled to inherit.
     
      
      . The phrase "adoptive child” was substituted for "foster child” in 1970, otherwise this particular provision of section 117 (1) has remained unchanged since 1963 (see, L 1970, ch 570, § 10).
     
      
      . Similarly, in 1984 the Law Revision Commission acknowledged that under existing law adopted-out children may inherit under a will providing for dispositions to a class of persons such as "issue”. In a recommendation to the Legislature concerning the inheritance rights of adopted-out children the Commission noted that: "Under present law, an adopted person cannot inherit in intestacy from or through natural kindred, except a natural parent who is married to an adopting step-parent, even though the adoption was by a step-parent or other person related by blood or marriage and the adopted child remained within the natural family unit (DRL § 117). Conversely, under such law, an adopted person may inherit or benefit as a member of a class (i.e., 'children’, ’issue’, 'nieces’, 'nephews’) named as beneficiaries under a will or inter vivas instrument, even when adopted out of the family by persons unknown to natural kindred and after the adoption papers have been sealed (DRL § 117 [subd 2]; Matter of Best, 116 Misc 2d 365 [1982]; Matter of Bissell, 74 Misc 2d 330 [1973]).” (Emphasis added.) (1984 McKinney’s Session Laws of NY, Memorandum of NY Law Rev Commn, at 3050.)
     
      
      . We went on to state that: "[t]he bulk of the statute refers to intestacy and succession. Where any mention of other rights and duties is made, it is only in the context of the natural and adoptive parents’ parental duties (see, also, Domestic Relations Law, § 110). Nothing in the statute purports to abrogate the interests of the grandparents, and the child, in continued contacts.” (Id.)
      
     
      
      . The nonmarital birth of the adopted-out grandson provides no grounds for a different conclusion. The requirements of both statutory and constitutional law mandate that individuals born out of wedlock be treated equally with "issue” otherwise similarly situated. (See, e.g., EPTL 3-3.3 [b]; 4-1.2; Levy v Louisiana, 391 US 68, 71.)
     