Eder's Appeal from Probate ( 2017 )

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DAVID ERIC EDER’S APPEAL FROM PROBATE*
(AC 39024)
Lavine, Alvord and Beach, Js.
Syllabus
D, the biological son of the settlor, J, appealed to the trial court from the
order and decree of the Probate Court concluding that the remainder
beneficiaries of J’s irrevocable trust included not only D, but also J’s
adopted adult children, S and M. J had created the trust in 1991, and it
terminated in 2011. The trust provided for distribution of the trust prop-
erty upon its termination ‘‘to each child of the settlor then living.’’ J had
one biological child, D, born in 1963, and adopted S and M in 2010. J
had established a relationship with S and M as early as 1972 when he
first met their mother, R, and began to live with R, S, and M in 1975,
when S was six years old and M was four years old. Following J’s
separation from R in 1985, J continued his relationship with S and M,
and provided them with financial and emotional support. J and D had
a falling-out in 2009. In 2011, the trustees of the trust filed an application
in the Probate Court seeking a determination of the trust’s beneficiaries.
The Probate Court decreed that D, S, and M were all remainder benefici-
aries of the trust. Thereafter, D appealed to the trial court, claiming that
by adopting S and M, J improperly added two remainder beneficiaries
to the trust to reduce the size of his share of the trust’s corpus. Following
a hearing, the trial court concluded that the Probate Court had properly
construed the trust and it rendered judgment dismissing the appeal,
from which D appealed to this court. Held:
1. D could not prevail on his claim that the trial court improperly concluded
that the intent of J in adopting two adults was not relevant to determining
whether the adoptions were a sham: that court, which found that, pursu-
ant to the trust, D’s share could be reduced permissibly only if J had
another biological child or had adopted a child under circumstances in
which the adoption could be viewed as a natural expression of a desire
to recognize a preexisting familial bond between the settlor and the
adopted children, concluded that the adult adoptions in the present case
were not a sham or subterfuge just to hurt D, but were consistent with
J’s affectionate and long-term relationship with S and M, who at the
time of the adoptions could be considered natural objects of the settlor’s
bounty, and that the adoptions were a recognition of the desire of J, S
and M to continue that bond, independent of a desire to harm D; further-
more, J, as the settlor, adopted the two adults and brought them into
the class of remainder beneficiaries of the trust, which defined the
beneficiaries as J’s then living children, either biological or adopted,
adopted children are permitted under state law to take under a trust
unless it explicitly excludes them, the trust here unambiguously included
S and M, and their adoptions did not alter the intent of the trust or do
violence to public policy concerning adoption.
2. The trial court properly concluded that because S and M were the natural
objects of J’s bounty, their adoptions by J did not contravene the purpose
or intent of the trust, which had to be determined from the language
of the trust, not external factors; the trust provided that a remainder
beneficiary was, at the time the trust terminated, a child of the settlor
then living, biological or adopted, our statutes permit adult adoptions
and adoptees to take under a testamentary instrument, unless they are
expressly excluded, which did not occur here, and the trust contem-
plated that J could have more children after its creation.
Argued May 30—officially released October 10, 2017
Procedural History
Appeal from the decision of the Probate Court for
the district of New Haven determining the beneficiaries
of a certain trust, brought to the Superior Court in the
judicial district of New Haven and tried to the court,
Hon. Thomas J. Corradino, judge trial referee; judg-
ment dismissing the appeal, from which the plaintiff
appealed to this court. Affirmed.
David R. Schaefer, with whom, was Michael T. Cret-
ella, for the appellant (plaintiff).
Glenn W. Dowd, with whom, were Seth Morgan
Kaplowitz and Casey R. Healey, and, on the brief, How-
ard Fetner, for the appellees (defendants).
Opinion
LAVINE, J. David Eric Eder (David Eder), the biologi-
cal son of the settlor, John Dennis Eder (settlor),
appealed to the Superior Court from a decree of the
Probate Court concluding that the remainder benefici-
aries of the John Dennis Eder Annuity Trust (trust)
include not only the settlor’s biological child, but also
his adult adopted children.1 Following a hearing, the
Superior Court concluded that the Probate Court prop-
erly had construed the trust and dismissed the appeal.
David Eder appealed to this court, claiming that, as a
matter of law, the Superior Court erred by holding (1)
that the settlor’s intent in establishing the trust was not
relevant to determining whether the subject adoptions
were a sham and (2) that the adoptions did not contra-
vene the purpose and intent of the trust because the
adoptees were the natural objects of the settlor’s
bounty. We affirm the judgment of the court.
The root cause of the present appeal appears to be
a falling-out between a father and his biological son.
The Court of Probate for the district of New Haven
succinctly set forth the crux of the appeal in its decree
issued on February 12, 2014. ‘‘[The settlor created the
trust] on October 21, 1991. The trust has terminated
as of October 21, 2011. An irrevocable trust, the trust
provides for distribution of trust property upon termina-
tion to ‘each child of the [settlor] then living.’ Though
the settlor has only one biological child, [David Eder],
the settlor recently adopted, on June 30, 2010, in the
[commonwealth] of Massachusetts, two adults, Sacha
[Richter] and Mischa Richter [Richter brothers]. On
November 3, 2011, the trustees brought an application
for the determination of the trust’s beneficiaries. At
issue is whether the settlor’s adopted children fall
within the trust’s class of beneficiaries and may thus
benefit from the distribution of trust assets as remain-
der beneficiaries, or are disqualified outside of such
trust by fraud or other cause.’’ (Emphasis added.) The
Probate Court determined that the remainder benefici-
aries of the trust include both the settlor’s biological
son and his adopted children. The Probate Court
ordered the trustees to distribute the trust in equal
shares to David Eder, Sacha Richter, and Mischa
Richter.2
After the Probate Court issued its decree, on March
11, 2014, David Eder appealed to the Superior Court.
As reasons for the appeal, he alleged that he was
aggrieved by the Probate Court’s decree because ‘‘nei-
ther adoptee is a ‘Child’ of John Eder within the meaning
of that term contained in the [trust]; and even if the
term ‘Child’ in the [trust] could be interpreted to include
adopted children, the adoption of the Richter brothers
was a fraud/sham entered into for the sole purpose of
changing the beneficiaries of an irrevocable trust.’’
The court found the following facts, which are not
challenged by David Eder. David Eder was born to the
settlor and Pearl-Ellen Bench (mother) in 1963, when
the settlor was eighteen years old. The settlor and
mother divorced soon thereafter. Throughout his child-
hood, David Eder lived in Connecticut with his mother
and her second husband, H. William Shure. Shure had
a parent-like relationship with David Eder, and they
remain close today. The settlor had little involvement
with David Eder and moved to Provincetown, Massa-
chusetts, in 1970.
The settlor met Jill Richter in 1972 and began to live
with her and her sons, the Richter brothers, in 1975.
At the time, Sacha Richter was six years old and Mischa
Richter was four years old. For the next ten years,
the settlor, Jill Richter, and the Richter brothers lived
together in Provincetown. The settlor and Jill Richter
separated in approximately 1985, but the settlor has
continued his relationship, including financial and emo-
tional support, with the Richter brothers to the pre-
sent day.
In 1991, for tax planning purposes, Arthur Eder, the
settlor’s father, directed his attorney to draft a trust
instrument for the settlor.3 Pursuant to the settlor’s
trust, the settlor was to receive $114,000 per year for
twenty years at which time the trust ended; the corpus
of the trust was to be distributed in equal shares to
‘‘each child of the [settlor] then living.’’ The settlor exe-
cuted the trust on October 21, 1991.
David Eder and the settlor had an amicable relation-
ship until approximately 2009. For reasons that are not
directly relevant to this appeal, the settlor had a falling-
out with David Eder and sought to disinherit him. He
consulted Michael D’Addio, an attorney trustee, to undo
the monetary gifts that he had made to David Eder.
Michael D’Addio informed the settlor that, for tax pur-
poses, the trust was irrevocable and that the settlor did
not have the authority to revoke the trust or change
the beneficiary.
The court found that, in 2010, the settlor wished to
legalize his parental relationships with the Richter
brothers and talked to them individually about his plan.
The Richter brothers, who were adults, agreed to be
adopted by the settlor, and the Probate and Family
Court for the County of Barnstable, Massachusetts,
approved the adoptions on June 30, 2010. The settlor
admitted that the reason he adopted the Richter broth-
ers at the time was ‘‘to include them in the [trust] before
the date expired.’’ The trust terminated on October
21, 2011.
David Eder claims that by adopting the Richter broth-
ers, the settlor improperly added two remainder benefi-
ciaries to the trust to reduce the size of his share of
the trust’s corpus. On November 3, 2011, the trustees,
Michael D’Addio and Gail D’Addio, filed an application
in the Probate Court seeking a determination of the
trust’s beneficiaries. After the Probate Court decreed
that David Eder as well as the Richter brothers were
the remainder beneficiaries of the trust, David Eder
appealed to the Superior Court.
The standard of review applicable to probate appeals
is well known. ‘‘In a probate appeal . . . the Superior
Court’s jurisdiction is statutory and limited to the order
appealed from. The issues presented for review are
those defined in the reasons of appeal. The Superior
Court cannot consider or adjudicate issues beyond the
scope of those proper for determination by the order
or decree attacked. This is so even with the consent of
the parties to the appeal because the court has subject
matter jurisdiction limited only to the order or decree
appealed from.’’ Silverstein’s Appeal from Probate, 13
Conn. App. 45, 58, 534 A.2d 1223 (1987). ‘‘[The Superior
Court] tries the questions presented to it de novo, but
in so doing it is . . . exercising a special and limited
jurisdiction conferred on it by the statute authorizing
appeals from probate.’’ (Internal quotation marks omit-
ted.) Id., 53–54.
The probate appeal was tried on July 27 and 28, 2015.
On March 2, 2016, the court issued a lengthy and com-
prehensive memorandum of decision dismissing the
appeal, holding that the Richter brothers, as adoptees,
are children of the settlor within the meaning of the
trust and that the adoptions were not a sham as the
adoptees were the natural objects of the settlor’s
bounty. David Eder appealed.
In this court, David Eder claims that, as a matter of
law, the Superior Court erred in holding (1) that the
settlor’s intent in adopting two adults was not relevant
to a determination of whether the adoptions were a
sham and (2) that the purpose of the trust was not
contravened by the settlor’s adopting the Richter broth-
ers because they were the natural objects of his bounty.
We disagree.
I
THE TRUST
In adjudicating the probate appeal, the court first
construed the trust. ‘‘Where the language of the [trust
instrument] is clear and unambiguous, the [instrument]
is to be given effect according to its terms. A court
will not torture words to import ambiguity where the
ordinary meaning leaves no room for ambiguity. . . .
[T]he issue of intent as it relates to the interpretation
of a trust instrument . . . is to be determined by exami-
nation of the language of the trust instrument itself and
not by extrinsic evidence of actual intent. . . . The
construction of a trust instrument presents a question
of law to be determined in the light of facts that are
found by the trial court or are undisputed or indisput-
able.’’ (Citation omitted; internal quotation marks omit-
ted.) Heath v. Heath, 150 Conn. App. 199, 203–204, 90
A.3d 362, cert. denied, 312 Conn. 921, 94 A.3d 1200
(2014); see also Heffernan v. Freedman, 177 Conn. 476,
481, 418 A.2d 895 (1979). An appellate court’s review
of conclusions of law is plenary. State v. Velasco, 248
Conn. 183, 189, 728 A.2d 493 (1999).
The court found that, at the urging of his father, the
settlor established an annuity trust in 1991, which was
to terminate in twenty years. The trust was to provide
the settlor with $114,000 per year and after twenty years,
the trust was to terminate and the trust assets were to
be distributed ‘‘into separate, equal shares, so as to
provide one share for each child of the Grantor then
living . . . .’’ (Emphasis added.) The court identified
the relevant provisions of the trust.
Subsection one of Article XIII of the trust is entitled
‘‘Definitions’’ and provides: ‘‘Lineal Descendants: The
term ‘lineal descendants’ used anywhere in this Trust
Indenture shall mean child, grandchild, great-grand-
child, etc., whether so related by blood or legal adop-
tion, including any of the aforesaid born or adopted
after the signing of this Trust Indenture. The grantor’s
only living child is David Eric Eder.’’ (Emphasis added.)
Subsection six of Article I contemplates that the grantor
may have other children at the time the trust terminated
in twenty years.4 Specifically, subsection six provides
in relevant part: ‘‘[u]pon the Termination Date, the
Trustees shall divide the Trust Property, as it shall then
exist, into separate, equal shares, so as to provide one
share for each child of the Grantor then living . . . .’’
(Emphasis added.)
Article XII of the trust instrument provides ‘‘[t]his
trust is irrevocable and the Grantor shall have no right
whatsoever to alter, amend, revoke, or terminate the
trust created hereunder, in whole or in part.’’ Article
X, ‘‘Governing Law,’’ states that ‘‘Trust Indenture has
been accepted by the Trustees and its validity, construc-
tion, and all rights thereunder shall be governed by the
laws of the State of Connecticut.’’
The court consulted our General Statutes as they
pertain to adoption. Our statutory law permits the adop-
tion of adults and provides that the adopted person shall
be the legal child of the adoptive parent. See General
Statutes § 45a-734.5 General Statutes § 45a-707 provides
in relevant part: ‘‘(1) ‘Adoption’ means the establish-
ment by court order of the legal relationship of parent
and child . . . (5) ‘Parent’ means a biological or adop-
tive parent . . . .’’
The court concluded that pursuant to the trust and
the statutory laws of this state, the Richter brothers
are the settlor’s children pursuant to the Massachusetts
adoption decree.6 David Eder does not challenge the
validity of the adoptions or that the Richter brothers
are the settlor’s children. Rather, his claim is that the
settlor’s adoption of the Richter brothers was a sham
that altered the terms and purpose of the trust.7 We
disagree.
II
THE ADOPTIONS
The court recognized that under § 45a-731 (4), an
adopted child, unless expressly excluded by the trust,
shall be treated as a biological child of the adopting
parent, that § 45a-734 allows for the adoption of adults,
and that full faith and credit must be afforded to the
Massachusetts adoption. The court found that the trust
did not expressly exclude adopted children. It also
found that the trust identified David Eder as the settlor’s
only living child at the time the trust was established,
and that the trust contemplated that the settlor could
have other children living when the trust terminated
in 2011.8 David Eder claimed that the settlor had an
improper motive in adopting the Richter brothers that
required the court to determine whether the settlor’s
adoption of the Richter brothers was a sham and act
of subterfuge that violated the settlor’s original intent
in establishing the trust. The court found no Connecti-
cut case on point and looked to the common law of
other jurisdictions, as suggested by the parties, for
guidance.
It has been stated that a sham or subterfuge adoption
occurs ‘‘when an adult is adopted for the sole purpose
of making him or her an heir and claimant to the estate
of an ancestor under the terms of a testamentary instru-
ment known and in existence at the time of the adoption
. . . thwarts the intent of the ancestor whose property
is being distributed and cheats the rightful heirs.’’
Minary v. Citizens Fidelity Bank & Trust Co., 419
S.W.2d 340, 343 (Ky. 1967).
The first sentence of Article XII of the trust provides
‘‘[t]his Trust Indenture is irrevocable and the grantor
shall have no right whatsoever to alter, amend, revoke,
or terminate the trust created hereunder, in whole or
in part.’’ The court determined that the settlor could
not ‘‘change the operation of the trust by a sham adop-
tion done solely for the purpose of creating beneficiar-
ies [that] has the effect of reducing the benefits that
would have otherwise accrued to a beneficiary absent
the adoption.’’
Generally, courts that disfavor adult adoptees from
taking under a testamentary instrument consider the
adoption an act of subterfuge. ‘‘It is of paramount impor-
tance that man be permitted to pass on his property at
his death to those who represent the natural objects of
his bounty. This is an ancient and precious right running
from the dawn of civilization in an unbroken line down
to the present day. Our adoption statutes are humanitar-
ian in nature and of great importance to the welfare of
the public. However, these statutes should not be given
a construction that does violence to the above rule and
to the extent that they violate the rule and prevent one
from passing on his property in accord with his wishes,
they must give way. Adoption of an adult for the purpose
of bringing that person under the provisions of a preex-
isting testamentary instrument when he clearly was not
intended to be so covered should not be permitted
. . . .’’ Minary v. Citizens Fidelity Bank & Trust Co.,
supra, 419 S.W.2d 343–44. In a number of cases, an
adoption has been considered an act of subterfuge that
defies the will of the grantor when a beneficiary of a
trust or will adopted an adult, such as a spouse; see
Matter of Trust Created by Belgard, 829 P.2d 457, 460
(Colo. App. 1991); a same sex partner; see Cross v.
Cross, 177 Ill. App. 3d 588, 590–91, 126 Ill. Dec. 801,
532 N.E.2d 486 (1988), appeal denied, 126 Ill. 2d 558,
541 N.E.2d 1105 (1989); or the adult children of a much
younger first spouse whom the beneficiary married late
in life; see Dixon v. Weitekamp-Diller, 365 Ill. Dec. 732,
737–38, 979 N.Ed.2d 98 (Ill. App. 2012), appeal denied,
367 Ill. Dec. 618, 982 N.E.2d 768 (2013); that had the
effect of enlarging the beneficiary class of lineal
descendants.
The court cited and analyzed numerous cases from
other jurisdictions involving trust or will contests
involving the adoption of adults. ‘‘Adult adoptions in
estates and trusts cases have been rife with controversy.
This controversy has led to three lines of cases among
the jurisdictions in deciding the effect of an adult adop-
tion on the construction of a testamentary instrument.
The oldest line presumes all adult adoptees to be
included in class gifts to children. A second line pre-
sumes all adult adoptees to be excluded from class gifts
to children. A third line takes the middle ground by
allowing exceptions to presumptive inclusion or exclu-
sion depending on particular circumstances.’’ (Foot-
notes omitted.) Davis v. Neilson, 871 S.W.2d 35, 38 (Mo.
App. W.D. 1993).
In resolving the appeal, the court adopted what it
called the commonsense test articulated in Davis.
‘‘[C]ommon sense tells us that a donor would normally
expect anyone partaking of his bounty to be a true
family member and not just some willing adult adopted
for the purpose of reducing or defeating a gift-over to
others. . . . Common sense tells us that [the testator],
by inserting adopted children in the class described as
[the settlor’s] issue, intended to include only individuals
with some familial bond to her family—individuals to
whom [the settlor] felt a familial bond of love and duty,
such as adult stepchildren.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) Id.
Courts generally recognize the public policy and
humanitarian nature of adoption but also recognize that
those humane purposes can be thwarted by an adoption
of an adult for the mere purposes of bringing the
adoptee within the class of beneficiaries. It has been
stated that Kentucky’s ‘‘adoption statutes are humani-
tarian in nature and of great importance to the welfare
of the public. However, these statutes should not be
given a construction that does violence to [the rule that
prevents one from passing his or her property in accord
with her or his wishes].’’ Minary v. Citzens Fidelity
Bank & Trust Co., supra, 419 S.W.2d 344.
In the present case, the court reasoned that the pur-
pose of adoption laws would not be thwarted by barring
a wife who had been adopted by her husband from
taking under a trust thus depriving a clearly indicated
alternate beneficiary from receiving trust proceeds. A
settlor’s intent, however, would not be thwarted if an
adoptee who was a natural object of the adopter’s
affections in a parental relationship over the years was
a trust beneficiary despite the fact that the adoption
took place after the parental relationship commenced
and when the adoptee was an adult. See, e.g., In re
Trusts Created by Agreement with Harrington, 311
Minn. 403, 250 N.W.2d 163, 164 (1977) (foster children
adopted as adults).
On appeal to the Superior Court, David Eder con-
tended that the settlor’s adoption of the Richter broth-
ers was a sham to amend the trust thereby reducing
his share of the corpus when the trust terminated. The
court concluded that, pursuant to the trust, David Eder’s
share could be reduced permissibly only if the settlor
had another biological child or had adopted a child
under circumstances in which the adoption could be
viewed as (1) a natural expression of a desire to recog-
nize a preexisting familial bond between the settlor and
the Richter brothers, who at the time of the adoptions
were adults and could be considered natural objects of
the settlor’s bounty and (2) a recognition of the settlor’s
and the Richter brothers’ desire to continue the bond.
The court then turned to the facts of the case before
it and made the following findings regarding the settlor’s
relationships with David Eder and with the Richter
brothers.
After David Eder was born, the settlor had little
involvement with him. David Eder never lived with the
settlor in Massachusetts, only visited him for short peri-
ods of time, and periodically saw him at the home of
the settlor’s parents in Connecticut. David Eder lived
with his mother and William Shure with whom he has
a father-son relationship that continues to the present
time. David Eder has a close relationship with his half
brother Andrew Shure.
The settlor clearly has a family-like relationship with
the Richter brothers. When he lived with Jill Richter,
he was a father figure to them and made substantial
contributions to their financial support. He did home-
work with them, taught them how to ride a bicycle, and
engaged in other age appropriate parent-child activities.
The settlor took the Richter brothers to and from school
and attended parent-teacher conferences. They ‘‘would
draw together’’ and create objects out of different mate-
rial, which were activities not foreign to their future
careers; Sacha Richter is an artist and Mischa Richter
is a photographer. On several occasions, the settlor took
the Richter brothers to Connecticut to visit his parents.
Jill Richter returned to England in 1985. The settlor
visited Mischa Richter there six or eight times, traveled
with him in Morocco for several weeks, and participated
in his wedding in England. Mischa Richter’s children
call the settlor ‘‘grandpa.’’ Sacha Richter lives in Prov-
incetown, and sees the settlor frequently or speaks to
him by phone. The settlor also participated in Sacha
Richter’s wedding.
Other indicia of the settlor’s relationship with the
Richter brothers that were put into evidence include
cards and letters the Richter brothers had sent to him
when they were young men before the legal dispute
with David Eder began. The court reasoned that there
was no reason for the settlor to save the cards and
letters if there were no close relationship between him
and the Richter brothers. After the Richter brothers left
the settlor’s home in 1985, he provided financial support
for books, rent, and parking tickets when they were in
college. The settlor put into evidence a record of the
checks he wrote to the Richter brothers. Between 1991
and 2001, Mischa Richter received two checks; one in
the amount of $20,000 was to help with the purchase
of property in London. Between 1995 and 2005, the
settlor wrote sixteen checks to Sacha Richter totaling
$40,134 for a variety of purposes; one check was for
$20,000 to help purchase a home in Provincetown. In
addition to writing checks for the Richter brothers, the
settlor gave them cash. The court found that the settlor
made the monetary gifts before 2009 when the settlor
had a falling out with David Eder and are indicia of
a familial bond between the settlor and the Richter
brothers. The court concluded that the Richter brothers
were the natural objects of the settlor’s natural bounty.
The court found that the settlor’s financial gifts to
the Richter brothers continued after he adopted them.
The court concluded that such gifts were further evi-
dence of the continuing close relationship between the
settlor and the Richter brothers.9 The court concluded
that the settlor gave the funds to the Richter brothers
because they were in need of them, which underscored
the court’s finding that they were the natural objects
of his bounty and confirmed the familial relationship
that had existed for years and was independent of a
desire to harm David Eder.10 The court found that the
settlor’s problems with David Eder may have been a
catalyst for him to consider adopting them given his
long relationship with the Richter brothers and David
Eder’s wealth.11 The court reasoned that common sense,
as described in Davis v. Neilson, supra, 871 S.W.2d 38,
seemed to dictate the adoptions were not a sham or
subterfuge just to hurt David Eder, but were consistent
with the settlor’s affectionate and long-term relation-
ship with the Richter brothers.12
III
CLAIMS ON APPEAL
David Eder claims that the court erred, as a matter
of law, by holding that the intent of the settlor in adopt-
ing two adults was not relevant to determining whether
the adoptions were a sham. We disagree.
David Eder’s claims on appeal are grounded in the
principle of the law stated by the Illinois Court of
Appeals. ‘‘The adoption of an adult solely for the pur-
pose of making him an heir of an ancestor under the
terms of a testamentary instrument known and in exis-
tence at the time of the adoption is an act of subterfuge.
. . . This practice does great violence to the intent and
purpose of our adoption laws, and should not be permit-
ted. . . . We cannot condone such a use of the adop-
tion process.’’ (Citations omitted.) Cross v. Cross,
supra, 532 N.E.2d 488–89. In support of his argument,
David Eder cites numerous cases from other jurisdic-
tions that are factually distinguishable. In those cases,
it was a different generational beneficiary of a trust
settled by an ancestor who adopted an adult in order
to enlarge the class of beneficiaries. The various courts
of appeal declined to permit an adult adoptee to be a
part of the beneficiary class.13 These cases are distinct
from the facts in the present case in that it is the settlor
who adopted two adults that brought them into the
class of remainder beneficiaries of the trust. The trust
itself defined the beneficiaries as the settlor’s then living
children, be they biological or adopted.
The laws of the state of Connecticut permit adopted
children to take under a will or trust unless the testa-
mentary instrument explicitly excludes them. See Gen-
eral Statutes § 45a-731 (4). The trust does not exclude
adopted children. To the contrary, it unambiguously
includes them. The adoptions did not alter the intent
of the trust, and they did no ‘‘violence’’ to our public
policies concerning adoption.
David Eder also claims that the court erred, as a
matter of law, by concluding that the purpose of the
trust was not contravened because the Richter brothers
were the natural objects of the settlor’s bounty. In
essence, what David Eder claims is that the settlor did
not intend the Richter brothers to be beneficiaries of
the trust when it was established. This argument fails
because the trust provides that a remainder beneficiary
is, at the time the trust terminates, a child of the settlor
then living. Intent is to be determined by the language
of the trust, not external factors. Heath v. Heath, supra,
150 Conn. App. 203–204. The trust defined child as a
biological or adopted child; our statutes permit adult
adoptions and adoptees are permitted to take under
a testamentary instrument, unless they are expressly
excluded. General Statutes §§ 45a-731 (4), 45a-734.
Moreover, the trust contemplated that the settlor may
have had more children in 2011 than he had in 1991, a
fact David Eder does not challenge. We conclude that
the court properly found that the settlor’s adoptions of
the Richter brothers were not a sham and that the
adoptions did not alter that intent of the trust.
For the foregoing reasons, we conclude that the Supe-
rior Court properly affirmed the Probate Court’s decree
that the corpus of the trust is to be distributed to the
settlor’s then living children, his biological son and his
adopted children. The decree is consistent with the
intent of the trust and the laws of this state.
The judgment is affirmed.
In this opinion the other judges concurred.
* In the Superior Court, the case was captioned David Eric Eder v. Appeal
from Probate. The judgment file, appeal form, and briefs bear the caption
David Eric Eder v. John Dennis Eder et al. The caption of the case that
appears here conforms to the convention our appellate courts use for appeals
from probate. See, e.g., Garrett’s Appeal from Probate, 237 Conn. 233, 676
A.2d 394 (1996); Baskin’s Appeal from Probate, 194 Conn. 635, 484 A.2d
934 (1984); Davis’s Appeal from Probate, 39 Conn. 395 (1872); Sanzo’s
Appeal from Probate, 133 Conn. App. 42, 35 A.3d 302 (2012); Nulman’s
Appeal from Probate, 13 Conn. App. 811, 537 A.2d 495, cert. denied, 207
Conn. 806, 540 A.2d 374 (1988).
1
The following individuals were served with the appeal: John Dennis
Eder, settlor; Mischa B. Richter, adopted son; Sacha A. Richter, adopted
son; Gail D’Addio, trustee; and Michael D’Addio, trustee.
2
The Probate Court stayed the distribution of the trust corpus for thirty
days and, if appeals were taken, until the final order of a court.
3
The settlor testified, in part: ‘‘I had no help from a lawyer with this
document, I looked through the document. My father and I had discussions
before this document was given to me to be signed. I made sure that whatever
the discussions were that I had with my father were included in the docu-
ment. There were two major points that I was concerned with, with the
document. He told me that I was going to get $114,000 a year, which was
included in the document. I never personally received it in my hand per
year. But, I don’t know, that’s one thing. And the other thing I would talk
to my father about at that time, when he had suggested doing this for tax
reasons, was that since I was in my forties, I believe, that I wanted to make
sure any future children, either by blood or adoption, was included within
this trust document, because I didn’t know what was going to happen, you
know, further on.’’ (Emphasis added.)
4
David Eder emphasizes that the trust identifies him as the settlor’s only
living child at the time the settlor signed the trust, but he does not dispute
that the trust contemplates that the settlor may have more children at the
time the trust terminates.
5
Section 45a-734 provides in relevant part: ‘‘(a) Any person eighteen years
of age or older may, by written agreement with another person at least
eighteen years of age but younger than himself or herself unless the other
person is his or her spouse, brother, sister, uncle or aunt of the whole or
half blood, adopt the other person as his or her child . . . .
‘‘(b) . . . Upon the [probate] court’s approval of the adoption agreement,
the adopted person shall become the legal child of the adoptive parent, and
the adoptive parent shall become the legal parent of the adopted person,
and the provisions of section 45a-731 shall apply. . . .’’
6
The Superior Court held in part that not only were the Massachusetts
adoptions entitled to full faith and credit in Connecticut; see Maltas v.
Maltas, 298 Conn. 354, 362, 364, 2 A.3d 902 (2010); but also found that General
Statutes § 45a-731 provides that ‘‘[a] final decree of adoption, whether issued
by a court of this state or a court of any other jurisdiction, shall have the
following effect in this state . . . (4) The adopted person shall . . . be
treated as if such adopted person were the biological child of the adoptive
parent for purposes of the applicability of all documents and instruments,
whether executed before or after the adoption decree is issued, which do
not expressly exclude an adopted person in their operation or effect. The
words ‘child’, ‘children’, ‘issue’, ‘descendant’, ‘descendants’, ‘heir’, ‘heirs’,
‘lawful heirs’, ‘grandchild’ and ‘grandchildren’, when used in any will or
trust instrument shall include legally adopted persons unless such docu-
ment clearly indicates a contrary intention. . . .’’ (Emphasis added.)
7
David Eder devoted a number of pages in his appellate brief to the United
States tax code and argued that the trust was intended to achieve tax benefits
that could not be achieved if the trust were amended. His contention is that
by finding that the Richter brothers are remainder beneficiaries of the trust,
the trust was altered and the tax benefit lost. The settlor argues that David
Eder did not raise that claim in the Superior Court and, therefore, it is not
properly before us on appeal. See Practice Book § 60-5; Brehm v. Brehm,
65 Conn. App. 698, 702–704, 783 A.2d 1068 (2001). In his reply brief, David
Eder states that he did raise the tax issue in the Superior Court during
argument. The transcript reveals that David Eder’s counsel briefly mentioned
that a trust established for tax and estate purposes is not revocable.
Whether the claim was raised in the Superior Court, it is nonetheless
entirely without merit. Although the court found that the settlor’s father
had encouraged him to establish the trust for tax planning purposes, it found
no provision in the trust regarding taxes. Even if we were permitted to look
beyond the language of the trust to determine the settlor’s intent, which we
may not; see Heath v. Heath, supra, 150 Conn. App. 203–204; the court did
not consider, let alone find, that by adopting the Richter brothers the
intended tax benefits of the trust were negated. Moreover, David Eder has
identified no evidence to the contrary.
8
David Eder does not claim that the court erred in finding that the trust
contemplated the settlor’s having other children between 1991 and 2011.
9
After May 1, 2010, the settlor wrote checks to Mischa Richter totaling
$53,600 of which $50,000 was to purchase a home. After that date, the settlor
wrote checks to Sacha Richter totaling $12,880. All of the checks were in
the nature of ‘‘help me out,’’ typical of a familial setting or where a familial
relationship exists. The transfer of funds was made after the settlor adopted
the Richter brothers but before funds from the trust could be distributed.
10
The court also found that the settlor’s animosity toward David Eder
resulted in his leaving him nothing by way of his will. The settlor wrote a
will in 2013, in which he left a small portion of his estate to the Richter
brothers and the rest to charity. The court again found that the Richter
brothers were the natural objects of the settlor’s bounty. The bequest from
his estate would not accrue to the Richter brothers until he died. The trust
gave them funds that they needed in the present.
11
The settlor testified: ‘‘I mean the trouble I had with David Eder was a
catalyst for me to start paying more attention to things that I haven’t been
paying attention to. And when I realize that I had the opportunity to adopt
Sacha and Mischa, who were more or less my kids the way they grew up,
I thought why not include them in this if I could. Why not share my estate
with them? Why not make our relationship legal?’’
12
See also Estate of Pittman, 104 Cal. App. 3d 288, 292–94, 163 Cal. Rptr.
527 (1980), citing E. Halbach, The Rights of Adopted Children Under Class
Gifts, 50 Iowa L. Rev. 971, 990–91 (1965) (urging replacement of ‘‘stranger
to the adoption’’ rule found in some jurisdictions for ‘‘loco parentis’’ rule);
and J. ten Broek, California’s Adoption Law and Programs, 6 Hastings L. J.
261, 275–82 (1955) (family experience and contact theory is when significant
percentage of adult adoptions, those in which stepparents have parented
children from early age, either learn belatedly of possibility of legally adopt-
ing stepchild or were prevented from doing so earlier by nonconsenting
biological parent).
13
See, e.g., Otto v. Gore, 45 A.3d 120, 128–29 (Del. 2012) (beneficiary
adopted former spouse); Matter of Estate of Nicol, 152 N.J. Super. 308, 377
A.2d 1201, 1203 (1977) (long unmarried beneficiary son married much older
spouse and adopted her children close to his age).