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In re Estate of Seader9/23/2003
e statute." "Lineal descendant" means no more, or less, than in a direct line, e.g. a child or grandchild. The definition of "child" remains to be supplied. In In re Cadwell's Estate, this Court quoted with approval a definition of "lineal descendant" that included "an adopted child." 26 Wyo. 412, 419-20, 186 P. 499, 501 (Wyo. 1920). "Child" is defined by Wyo. Stat. Ann. § 2-1-301(v) (LexisNexis 2003) as including "an adopted child." No definition expressly states, or even implies, that the definition of "adopted child" is limited to a legally adopted child, to the exclusion of an equitably adopted child. As such, I see no direct conflict in reading "equitably adopted child" into the definition of lineal descendant.
Which brings me back to the initial enquiry - should equity be applied to these facts? I would approach the question in a slightly different manner. Certainly this case does not present the standard set of facts for the application of equitable adoption. Because Neil died testate, equitable adoption in the traditional sense does not apply. The Wyoming Probate Code clearly directs that " he intention of a testator as expressed in his will controls the legal effect of his dispositions." Wyo. Stat. Ann. § 2-6-105 (LexisNexis 2003). Thus, the critical inquiry is Neil's intentions as expressed in his will.
In determining the intent of a testator, it is important to note that the Wyoming Probate Code is set up as an "opt out" code. In other words, the provisions of the probate code apply unless the testator evinces a contrary intention in the will. Thus, the anti-lapse statute automatically applies unless the testator indicates otherwise in his will. In this case, Neil's will provides no indication that he did not want the anti-lapse statute to apply. Thus, Neil's intent is for the anti-lapse statute to apply. There is no question that if one or both of the biological sons had predeceased their father, their heirs would have taken "in place" of the deceased devisee.
It is critical to note that the anti-lapse statute is not a statute of devise, but rather only limits the conditions upon which an inheritance will lapse. The inheritance does not lapse if it is made to a lineal descendent. If made to a lineal descendant, the "issue of the deceased devisee take in place of the deceased devisee." Wyo. Stat. Ann. § 2-6-106 (LexisNexis 2003). Thus, Kim and Kirk are not attempting to inherit in their own name or in their own right; they will only take in the place of Julie. It is still Julie's inheritance that is at stake.
Neil's will clearly indicated that he did want Julie to receive an inheritance from him. The question is: did he want her to receive the inheritance as his daughter or as a non-relative? The majority opinion decides the issue against Julie based upon the lack of any express language in the will referring to Julie as his daughter. I believe this oversimplifies the process. Neil never clarified anyone's status in his will. I believe this lack of clarification renders the terms of the will ambiguous.
" the construction of the will is to be resolved by determining the intent of deceased as such appears from a full and complete consideration of the entire will when read in the light of the surrounding circumstances." Douglas v. Newell, 719 P.2d 971, 973 (Wyo. 1986). The circumstances in this case indicate that Neil consistently treated and referred to Julie as his daughter. Julie was his wife's daughter. When Julie's mother died, she left her entire estate to Neil, leaving nothing to Julie. Then Neil executed his will, treating all three children equally in at least two provisions of the will, including the residuary clause. I believe t
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