Filed 7/30/15
                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT


MARY LOU SANDERS, as Trustee, etc.,               H041578
                                                 (Monterey County
        Plaintiff and Appellant,                  Super. Ct. No. MP21478)

        v.

JODY LYNN SANDERS YANEZ,

        Objector and Respondent.



        Appellant Mary Lou Sanders, cotrustee of the Marion C. Sanders Trust (the Trust),
appeals from the probate court’s order denying her petition and finding that her adopted
son, Andrew J. Wallace, is not a beneficiary of the Trust. Mary is the income beneficiary
of the Trust. The Trust provides that, upon Mary’s death, Mary’s “issue” will receive the
Trust’s assets, and it defines “issue” to include “adopted children.” However, the probate
court concluded that Andrew did not fall within this definition of “issue” because he had
been adopted as an adult under Texas adoption statutes. The probate court believed that a
Texas parent-child relationship did not encompass the same rights and duties as a
California parent-child relationship. We conclude that the probate court’s decision is not
supported by the law. Hence, we reverse its order and remand with directions to grant
Mary’s petition.
                                      I. Background
       Mary is the only child of the marriage of Marion C. Sanders and Herbert H.
Sanders. Mary’s half brother, George, is Herbert’s son and Marion’s stepson.
Respondent Jody Lynn Sanders Yanez is George’s eldest daughter.
       In 1975, Marion executed a will prepared by a California attorney and executed in
California. Marion’s will placed most of her separate property assets in the Trust and
provided that Mary would receive the income from the Trust during her lifetime. It
further provided that, if Mary needed additional funds, the corporate cotrustee of the
Trust, Bank of America, was authorized to provide her and “any issue” with payments
from the principal of the Trust. Upon Mary’s death, the remainder of the Trust’s assets
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was to be distributed “for the benefit of the then living issue” of Mary. The will
provided: “The word ‘issue’ as used in this Will shall refer to lawful lineal descendants
of all degrees and shall include legally adopted children.” If Mary had “no living issue”
surviving her, Jody was to become the income beneficiary of the Trust. Upon Jody’s
death, any remaining trust assets were to be used to establish a scholarship fund at San
Jose State University in Herbert’s name.
       When Marion executed her will in 1975, Mary was 26 years old, living in Arizona,
and intending to marry and move to Minnesota with her husband. Marion was aware of
Mary’s plans. Marion died in 1976. Herbert was the original cotrustee of the Trust; he
died in 1988. Mary succeeded Herbert as the cotrustee of the Trust. Bank of America



1
       The Trust’s assets were to be divided “into as many equal shares as there are
grandchildren of mine then living and grandchildren of mine then deceased who have left
lawful issue . . . .” “Each share set aside for a deceased grandchild shall be distributed to
the then living lawful issue of such grandchild upon the principle of representation.”
Until each “grandchild” reached the age of 25, the assets were to remain in trust.
Marion’s will also provided that the trustee was authorized to make payments to the
guardian of a “minor” beneficiary or to the “minor” directly.

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resigned as cotrustee of the Trust at some point and was replaced with an attorney. In
2006, the Trust’s assets apparently consisted of two condos in Texas. By the time this
action was litigated, the Trust’s assets apparently had dwindled to just a single condo
valued at $160,000.
       Andrew is the biological son of Mary’s close friend, and Mary has known him
since he was a child. In 2013, Mary, who resides in Texas, adopted Andrew, who was
then an adult. The Texas adoption order provided that “Andrew J Wallace is henceforth
the son of [Mary] for all purposes.”
       In 2014, Mary, as cotrustee of the Trust, filed a petition seeking a determination
that Andrew was the successor beneficiary of the Trust. Jody opposed Mary’s petition.
Jody claimed that the Texas adoption did not make Andrew Mary’s “issue” because a
Texas adoption did not impose the same mutual parent-child obligations that exist under
California law. She argued that Texas law does not require a parent to support an adult
child and does not require a child to support a parent.
       The court denied Mary’s petition and found that Andrew did not qualify as Mary’s
“issue” under Marion’s will. Although the court found “adopted children” was “not
ambiguous on the face of the will,” it found that there was a “latent ambiguity.” The
court acknowledged that “no extrinsic evidence was offered surrounding the
circumstances of Testator executing her will” other than the fact that Mary was
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unmarried at that time. It made its decision based solely on statutes, case law, and
public policy. The court agreed with Mary that Marion’s use of the words “adopted
children” included adopted adults and that a Texas adoption of an adult “creates a parent-
child relationship.” However, the court found that a Texas adoption of an adult was not


2
       George submitted a declaration in support of Jody’s opposition stating that Marion
had told him that she considered him her son and expected him to take care of her and
Mary if Marion outlived Herbert. This declaration was not relevant to any of the issues
before the probate court.

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the equivalent of a California adoption of an adult because a Texas adult adoption “does
not sever the relationship between the adopted adult and his or her biological parents as
California law does” and “does not require an adult child to support a parent as California
           3
law does.” The court concluded that a Texas adult adoption “appears in substance to
convey nothing more than heirship rights.” The court found “that Testator did not intend
the term ‘issue’ in her will to include adopted adults whose adoptive status lacked
essential elements of what such status would entail under California law.” Mary timely
filed a notice of appeal.


                                       II. Discussion
       “The interpretation of a written instrument, even though it involves what might
properly be called questions of fact [citation], is essentially a judicial function to be
exercised according to the generally accepted canons of interpretation so that the
purposes of the instrument may be given effect. [Citations.] Extrinsic evidence is
‘admissible to interpret the instrument, but not to give it a meaning to which it is not
reasonably susceptible’ [citations], and it is the instrument itself that must be given effect.
[Citations.] It is therefore solely a judicial function to interpret a written instrument
unless the interpretation turns upon the credibility of extrinsic evidence.” (Parsons v.
Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
       Mary contends that we should exercise independent review; Jody claims that our
review is not independent because there was extrinsic evidence before the probate court
in the form of declarations. The probate court expressly found that there was no extrinsic




3
      The court made this finding despite the fact that it was conceded by both parties
below that, under Texas law, a Texas adult adoption severed the parent-child relationship
between the adoptee and his or her natural parents.

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evidence of Marion’s intent, and its interpretation of Marion’s 1975 will did not turn on
the credibility of any extrinsic evidence. Hence, we exercise independent review.
       Marion’s will expressly included “adopted children” in the Trust’s definition of
“issue.” As the probate court correctly noted, there was no ambiguity on the face of the
will as to Marion’s intent that Mary’s “adopted children” would be considered Mary’s
“issue” for purposes of succeeding to the Trust’s assets. The “latent ambiguity”
identified by the probate court was what exactly Marion meant by “adopted children.”
The court looked to statutes, case authority, and public policy to resolve this latent
ambiguity.
       The probate court did not find that the fact that Andrew was adopted as an adult
meant that he did not come within the meaning of “adopted children” in Marion’s will. It
found that Andrew did not come within the meaning of “adopted children” because his
adoption under Texas law did not create a parent-child relationship that was the
equivalent of the parent-child relationship that would have been created by a California
adoption at the time of Marion’s will and to which Marion was presumed to be referring.
       “The status of an adopted child is determined by the laws of the state in which the
adoption was effected . . . .” (In re Estate of Hebert (1941) 42 Cal.App.2d 664, 665.)
Texas law provides that, upon adoption of an adult, “[t]he adopted adult is the son or
daughter of the adoptive parents for all purposes,” “is entitled to inherit from and through
the adopted adult’s adoptive parents as though the adopted adult were the biological child
of the adoptive parents,” and “may not inherit from or through the adult’s biological
parent[, and a] biological parent may not inherit from or through an adopted adult.” (Tex.
Fam. Code, § 162.507.) Texas case law unambiguously holds that “an adopted adult is
‘for every purpose, the child of his parent or parents by adoption as fully as though born
of them in lawful wedlock.’ ” (Lehman v. Corpus Christi Nat’l Bank (Tex. 1984) 668
S.W.2d 687, 689, italics added.)



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       Despite the clarity of Texas law establishing that an adopted adult has the same
status as the biological child of the adoptive parents “for all purposes,” the probate court
concluded that a Texas adult adoption established “nothing more than heirship rights.” It
based this conclusion on its belief that a Texas adult adoption “does not sever the
relationship between the adopted adult and his or her biological parents as California law
does” and “does not require an adult child to support a parent as California law does.”
       The probate court relied heavily on the Fourth District Court of Appeal’s decision
in Ehrenclou v. MacDonald (2004) 117 Cal.App.4th 364 (Ehrenclou). The trust in
Ehrenclou was created in 1954. It provided that, upon the trustor’s death, the trust’s
assets would be divided into separate trusts for the trustor’s daughter and her “ ‘children
then living.’ ” The trustor’s daughter would be an income beneficiary of her trust, and,
upon her death, her trust’s assets were to be distributed to “ ‘her then living lawful issue
per stirpes.’ ” (Ehrenclou, at p. 367.) When the trustor died, the daughter had two
children then living. However, 32 years later, the daughter adopted two adults in
Colorado. (Ibid.) When the daughter subsequently died, her two biological children
petitioned the probate court for an order finding them to be the only “ ‘living lawful
issue . . . .’ ” (Ibid.) The probate court granted the petition. It found that “under the law
of the State of Colorado ‘adult adoption . . . create[s] in the adoptee only the status as heir
at law to the person adopting, and such adoptee does not, by virtue of the adoption,
become a “child” or “issue” of the person so adopting, and inheritance flows only
through intestate succession of the adopting person and not as “issue” of such persons.’ ”
(Ehrenclou, at p. 368.)
       On appeal, the Fourth District acknowledged that it was bound by the principles
set forth in Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126 (Newman). In Newman,
the California Supreme Court recognized that even ordinarily unambiguous terms such as
“ ‘issue’ ” or “children” may have latent ambiguities “in the context of a particular will
and the circumstances in which the will was executed.” (Newman, at p. 134.) “We

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presume that provisions in a will are made with an understanding of, and an intent to act
pursuant to, the law and public policy as it exists when the will is executed. It is more
reasonable to assume that a testator who intends a different disposition will make express
provision . . . than to assume that the testator intends that [the identity of the class
members] not be established until some future time and be contingent upon legislative
fiat.” (Newman, at p. 140.) “The court will assume that the testator intended the will to
be compatible with the law and public policy in effect at the time the will is executed and
that, if the testator has a contrary intent, that intent will be made clear in the will.”
(Newman, at p. 142.) “We presume as we must that [the testator] knew the meaning of
‘issue’ and ‘children’ as those terms were understood at the time she executed the will.”
(Ibid.)
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          The word “issue” is not generally a legal or technical term of art. It is, as the
California Supreme Court acknowledged in Newman, a commonly understood word with
no technical legal meaning. Newman held that the state of the law and public policy at
the time a will drafted by an attorney was executed is some evidence of what was meant
by a commonly understood word that has a latent ambiguity. Based on Newman, the
Fourth District considered in Ehrenclou whether the trustor had intended to include the
adults adopted in Colorado within the meaning of “issue.”
          “The ‘relevant statutes, case law and public policy in effect at the time of the
execution of the [trustor’s 1954 trust]’ [citation], included those ‘embodied in the
adoption statutes [citations] and in the succession statute providing for the inheritance
rights of adopted children [citation].’ ” (Ehrenclou, supra, 117 Cal.App.4th at p. 370.)
“[B]ecause an adopted person and the adopting person are, by [California] law, in a
parent-child relationship the same as a natural parent and child, and presuming [the


4
       The word “issue” was not statutorily defined in California in 1975. The word
“issue” was first defined by statute in 1983. (Stats. 1983, ch. 842, § 21.)

                                                7
trustor] intended his words to reflect California law, a person adopted under California
law is ‘lawful issue’ of the adopting person as those words are used in the 1954 trust.”
(Ehrenclou, at p. 372.) The Fourth District observed that a California adoption creates a
parent-child relationship that includes mutual support obligations between the adoptee
and the parent, severs the parent-child relationship between the adopted person and his or
her natural parents, and creates inheritance rights between the adopted person and the
adoptive parent. (Ehrenclou, at p. 372.) The court stated that, “[u]nless the legal
relationship between an adopted person and an adopting person embraces all of the
mutual rights and duties of a parent and child [that are created under California law], it
cannot be said that the adopted person is the ‘issue’ of the adopting person, at least
insofar as that word is construed under California law.” (Ehrenclou, at pp. 372-373,
italics added.)
       Turning to the Colorado statutes under which the adults had been adopted, the
Fourth District determined that they did not have the requisite legal relationship to
qualify as the “issue” of the adoptive parent. (Ehrenclou, supra, 117 Cal.App.4th at
pp. 373-374.) The Colorado statutes in question did not create a parent-child relationship
at all but merely functioned to create inheritance rights for an “adopted” adult.
(Ehrenclou, at p. 374.) No other rights or obligations were created, and the natural
parents’ parental rights were not severed. (Ehrenclou, at p. 374.) Indeed, even the
inheritance right was not mutual; the adoptive parent gained no right to inherit from the
adopted person. (Ehrenclou, at p. 374.)
       The holding in Ehrenclou does not dictate the result in this case. In Ehrenclou, the
adults “adopted” in Colorado did not acquire a parent-child relationship with the daughter
of the trustor because Colorado law provided that an adult adoption created only an
heirship right. It was only in dictum that the Fourth District stated: “Unless the legal
relationship between an adopted person and an adopting person embraces all of the
mutual rights and duties of a parent and child [that are created under California law], it

                                              8
cannot be said that the adopted person is the ‘issue’ of the adopting person, at least
insofar as that word is construed under California law.” (Ehrenclou, supra, 117
Cal.App.4th at pp. 372-373, italics added.) This is not necessarily correct. If the law of
the state in which the adoption took place provides that the adoption creates a parent-
child relationship “for all purposes,” the adopted person acquires the same status as a
biological child. The mere fact that a sister state where the adoption took place does not
impose the same mutual rights and duties in parent-child relationships as California does
is irrelevant unless the sister state defines the adoptive parent-child relationship
differently from the biological parent-child relationship. California cannot devalue a
parent-child relationship simply because it was created, whether by biology or adoption,
in a sister state that imposes different rights and duties as parts of parent-child
relationships subject to its jurisdiction. Those policy choices do not alter the status of the
relationship.
       It follows that the probate court’s rationales fail to support its conclusion that
Texas adult adoption laws do not create a parent-child relationship. Texas law
unambiguously provides that a Texas adult adoption creates a parent-child relationship
“for all purposes.” Texas adult adoption laws do sever the parent-child relationship
between the adopted adult and his or her biological parents because, by Texas statute,
they lose their mutual inheritance rights. The precise parameters of the rights and duties
imposed by Texas law on parents and children are not relevant to the determination of the
status of an adopted person because those rights and duties apply to both biological
children and adopted persons.
       Accordingly, the probate court erred in ruling that Andrew was not Mary’s “issue”
within the meaning of Marion’s 1975 will. Andrew’s Texas adoption created a parent-
child relationship between him and Mary. As Marion’s 1975 will expressly included
“adopted children” within its definition of “issue,” Andrew qualifies as Mary’s “issue.”



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                                     III. Disposition
       The probate court’s order is reversed. On remand, the court shall vacate its order
denying the petition and enter a new order granting the petition. Mary shall recover her
appellate costs.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Grover, J.




Sanders v. Yanez
H041578


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Trial Court:                                  Monterey County Superior Court


Trial Judge:                                  Honorable Thomas W. Wills


Attorney for Plaintiff and Appellant:         Susan Wallace


Attorneys for Objector and Respondent:        Lisa J. Frisella
                                              Mara Christine Allard
                                              Law Office of Lisa J. Frisella




Sanders v. Yanez
H041578


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