Filed 12/21/20 Ellis v. Hurley CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ANTON ELLIS, a Minor, etc.,

Plaintiff and Appellant,

v.

DAMIAN HURLEY, a Minor, etc.,

et. al.,

 Defendants and Respondents.

B300769 c/w B300790, B300798, 

B3000799, B300804 & B300806

(Los Angeles County Super. Ct. Nos. 

19STPB01612, 19STPB01614, 

19STPB01615, 19STPB01622, 

19STPB01623 & 19STPB01624)

ORDER MODIFYING OPINION 

AND DENYING PETITION FOR 

REHEARING

[There is no change in judgment]

BY THE COURT:

It is ordered that the opinion filed herein on November 20, 2020 

is modified as follows: 

1. On page 3, the second full paragraph that begins, 

“Kira was born in 1988.” That sentence is deleted and replaced 

with: “Kira was born in 1998.”

2. On page 4, delete footnote 4 and replace it with a new 

footnote 4, that reads: “As of the filing of the petition, only Kira 

and Lucy of the four grandchildren had reached 18. The record 

does not reflect whether the trustee made any distributions to 

Kira or Lucy.”
2

[There is no change in judgment.]

The petition for rehearing is denied.

RUBIN, P. J. BAKER, J. KIM, J.
Filed 11/20/20 Ellis v. Hurley CA2/5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

ANTON ELLIS, a Minor, etc.,

Plaintiff and Appellant,

v.

DAMIAN HURLEY, a Minor, etc., 

et. al.,

 Defendants and Respondents.

B300769 c/w B300790, B300798, 

B3000799, B300804 & B300806

(Los Angeles County Super. Ct. Nos. 

19STPB01612, 19STPB01614, 

19STPB01615, 19STPB01622, 

19STPB01623 & 19STPB01624)

APPEAL from an order of the Superior Court of Los 

Angeles County, Daniel Juarez, Judge. Reversed and remanded 

with directions.

Holland & Knight, Vivian L. Thoreen, Roger B. Coven,

Stacie L. Chau; Carico MacDonald Kil & Benz, Christopher D. 

Carico, William G. Benz and Amber N. Morton for Plaintiff and

Appellant.

Sheppard, Mullin, Richter & Hampton, Adam F. Streisand, 

Golnaz Yazdchi, Valerie E. Alter and Meghan K. McCormick for 

Defendants and Respondents Elizabeth Hurley and Damian 

Hurley.

Keystone Law Group, Sharon S. Kerendian, Lindsey F. 

Munyer, Avi I. Pariser; Law Offices of James A. Bush and James 

A. Bush for Defendant and Respondent Kira Kerkorian.

__________________________
2

A trustee, granted discretion to interpret an irrevocable 

trust, construed the trust’s clause designating its beneficiary in a 

manner consistent with current statutory rules of construction. 

The trial court concluded the trustee’s construction was 

unreasonable. We disagree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

This appeal arises from the trial court’s resolution of a 

trustee’s six petitions for instructions in six identical probate 

matters, arising out of six virtually identical trusts. More simply, 

it is a family dispute. The ultimate issue for us to decide is 

whether there are two or four grandchildren identified as 

beneficiaries in the trusts.

1. The Family

The settlor/trustor of the trusts is Peter S. Bing.1 In 

August 1980, he created six irrevocable trusts for the benefit of 

his first six as-yet-unborn grandchildren. We will discuss the 

relevant terms of the trusts in the next section.

As of the time of the trustee’s probate petitions in 2019, 

Peter had two children, Mary and Stephen, and four 

grandchildren. Peter’s daughter, Mary, is the mother of Lucy and 

Anton. There is no dispute that Lucy and Anton are 

grandchildren entitled to benefits under the trusts. Peter’s son,

1 To avoid confusion, we refer to the family members by their 

first names; we intend no disrespect. 
3

Stephen, is the father of Kira and Damian.2 The rights of Kira 

and Damian under the trusts are at issue.3

The petitions which challenged the rights of Kira and 

Damian under the trusts did not concede their paternity, and the 

trial court did not resolve the question. Stephen had claimed he 

had fathered both children. 

Kira was born in 1988. She asserts that, at the time of her 

conception, her mother and Stephen were involved in a romantic 

relationship, but were unmarried. Their relationship ended prior 

to Kira’s birth. Kira was raised by her mother and her mother’s 

husband. At some point, it was established that the man who 

raised her was not her biological father. After that man died, 

Stephen contacted Kira and they began communicating regularly. 

Stephen signed documents declaring he was Kira’s biological 

father. At one point, Stephen expressed an interest in formally 

adopting her, although he did not do so. 

Stephen’s son Damian was born in 2002. His mother lives 

in England. She asserts that, although she and Stephen were 

never married, she and Stephen had joint legal custody of 

Damian since his birth. She claims Stephen acknowledged 

Damian as his son, has been judicially established as Damian’s 

father, and has provided financially for Damian’s support. 

Damian was raised by his mother, in England. 

2 Stephen died by suicide while this appeal was pending. 

3 For convenience, we sometimes refer to Lucy, Anton, Kira 

and Damian as “grandchildren,” even though Kira’s and 

Damian’s status as grandchildren under the trusts is contested. 
4

2. The Grandchildren Trusts

The case involves the construction of six virtually identical 

irrevocable trusts Peter created to benefit his first six 

grandchildren. The beneficiary of the first trust is “the first born 

grandchild of Peter S. Bing.” The beneficiary of the second trust 

is “the second born grandchild of Peter S. Bing,” and so forth, 

through “the sixth born grandchild.” The trusts were each 

initially funded with $15,000. Their current value or values is 

unclear.

Under the trusts, the trustee has discretion to make 

distributions of income and principal when the respective trust 

beneficiary reaches the age of 18.4 Each trust terminates on 

October 31, 2020, at which time the entire principal and all 

undistributed income shall be distributed to the beneficiary. 

As Peter has fewer than six grandchildren—either two or 

four, depending on the resolution of this case—the question 

arises as to the distribution of the leftover trusts—that is, those 

trusts whose primary beneficiary is a grandchild never to be 

born. The trusts do not expressly provide for this scenario. 

However, the parties assume a related provision governs. 

Specifically, there are provisions for distribution of each trust’s 

estate if the identified grandchild beneficiary is not living on 

October 31, 2020: first, to any successor appointed by the 

beneficiary; if none, to the beneficiary’s “living lawful issue”; if 

none, to be equally divided “among all of the then living 

grandchildren of Peter S. Bing other than the first six.” Finally, 

4 As of the filing of the petition, only Lucy of the four 

grandchildren had reached 18. The record does not reflect 

whether the trustee made any distributions to Lucy.
5

“[i]f there is no living person in any of the above described 

categories,” the trust is distributed to one or more of Peter’s 

grandchildren, depending on how many living grandchildren 

there are and which trust it is.5 The trustee takes the position 

that this provision also governs distribution in the event Peter 

has fewer than six grandchildren. For this reason, even though 

each trust has its own direct beneficiary grandchild, Mary’s 

children stand to benefit if Stephen’s children are excluded.

As we have explained, the case turns on the meaning of 

“grandchild” in the identification of the beneficiary of each trust. 

The trusts do not expressly define “grandchild.” However, they 

do contain this potentially related descriptive clause: “The words 

‘child,’ ‘children,’ and ‘issue’ whenever used herein, shall include 

legally adopted persons, whether adopted by Grantor or by 

Grantor’s natural or adopted children.” 

3. The Dispute

While the chronology of events is not always apparent from 

the record, the dispute is. Settlor Peter, his daughter Mary, 

Mary’s children (Lucy and Anton), and the trustee all take the 

position that Stephen’s children (Kira and Damian) are not 

5 For example, if the first grandchild is not living and has no 

successor, but there are one, two, or three living grandchildren, 

the estate of the first grandchild trust will go to the eldest living 

grandchild. If, however, there are four living grandchildren at 

that time, the estate of the first grandchild trust will be shared 

evenly between the third and fourth living grandchildren. The 

grandchildren identified in this provision vary from trust to trust.
6

“grandchildren” within the meaning of the grandchildren trusts, 

and are thus not entitled to any distribution.6

The trusts contain a term granting the trustee “the power 

to construe this Declaration of Trust, and any reasonable 

construction adopted after obtaining the advice of responsible 

legal counsel shall be binding on all persons claiming an interest 

in the trust estate as beneficiaries or otherwise.” 

On September 18, 2018, Peter signed a declaration, stating, 

“when I created the 1980 [Grandchildren’s] Trusts, I believed 

that they would not benefit any person born out of wedlock unless 

that person had lived for a substantial period of time while a 

minor as a regular member of the household of the natural 

parent who is a child of mine. I . . . am executing this Affid[av]it 

to ensure that my intent in this regard is clear.” His declaration 

went on to explain how this interpretation was specifically 

directed at excluding grandchildren like Kira and Damian from 

the trusts: “I have never met Damian or Kira and neither of 

them was raised by Stephen as part of his family. I know that 

neither of them has lived with Stephen while a minor as a 

regular member of his household. To the best of my knowledge, 

Stephen has never met Damian and Stephen only met Kira after 

she became an adult. [¶] Regardless of whether, when and if 

6 While the petitions were pending and in briefing on appeal, 

Anton’s interests were pursued by his father, Douglas Ellis, as 

guardian ad litem. Similarly, Damian’s guardian ad litem was 

his mother, Elizabeth Hurley. Both Damian and Anton reached 

majority while these appeals were pending. They each filed 

notices of appearance indicating they were now personally 

represented by the same counsel who had represented their 

respective guardian ad litem.
7

Stephen met with or had any relationship with Damian or Kira 

while they are or were minors, because neither was raised by him 

during their formative years I do not consider them my 

grandchildren. Even were Stephen to develop a relationship with 

Damian now, I would not consider him my grandchild because he 

is nearing adulthood, and I do not believe it is possible for him to 

live for a substantial period of time while a minor as a regular 

member of Stephen’s household.” Peter specifically stated that 

he did not consider Damian and Kira to be beneficiaries of the 

trusts “and that this is consistent with my intention” at the time 

he executed the trusts. 

Armed with this declaration, the current trustee, William 

Stinehart, Jr., sought “the advice of responsible legal counsel.”7 

On February 14, 2019, counsel, having reviewed the language of 

the trusts and Peter’s affidavit, concluded that “under California 

law, it is reasonable to construe ‘grandchild,’ as the term is used 

in the Grandchildren’s Trusts, to exclude a person born out of 

wedlock to a child of Peter who never resided while a minor as a 

regular member of that child’s household.” Specifically, counsel 

relied on Probate Code section 21115, subdivision (b), a statutory 

rule of construction which provides that, although persons out of 

wedlock are considered children for the purposes of intestacy, 

“[i]n construing a transfer by a transferor who is not the natural 

parent [e.g., grandparent], a person born to the natural parent 

shall not be considered the child of that parent unless the person 

lived while a minor as a regular member of the household of the 

7 The current trustee was not the original trustee. The 

parties do not dispute his appointment as substitute trustee.
8

natural parent or of that parent’s parent, brother, sister, spouse, 

or surviving spouse.” 

The following week, on February 20, 2019, the trustee filed 

six identical petitions (one for each trust) to determine 

entitlement to distribution and for instructions—specifically

seeking approval of the trustee’s determination that 

grandchildren born out of wedlock may not be treated as 

beneficiaries unless they lived with one of Peter’s children, while 

a minor, as a regular member of the household.8 Briefing 

followed, with Mary’s children supporting the petition and 

Stephen’s children opposing it. 

On May 2, 2019, the court held a hearing. The objectors 

took the position that the trust language was unambiguous and 

included all grandchildren, including, without limitation, 

grandchildren born out of wedlock. However, if the court were to 

conclude the trust was ambiguous and extrinsic evidence 

admissible for its interpretation, the objectors sought discovery. 

The court determined that it would accept briefing, and have a 

hearing, on the preliminary issue of whether extrinsic evidence 

“is even allowed or required or of necessity here.” 

8 In an apparent attempt to foreclose any attempt by 

Stephen to effect Kira’s beneficiary status by means of adoption, 

the trustee sought approval of a construction that excluded adultadopted grandchildren if they, similarly, did not live with one of 

Peter’s children while a minor as a regular member of the 

household. Peter had executed a declaration that this had been 

his intent and the trustee obtained an opinion letter from counsel 

on this issue as well. Stephen did not adopt Kira before his 

death, and we do not address the issue of adult adoption, except 

as relevant in our discussion of the law.
9

The parties then focused their briefing on that issue. The 

trustee took the position that two types of extrinsic evidence 

supported his interpretation of “grandchild” as excluding children 

born out of wedlock who did not live for a substantial time as a 

minor in the household of Peter’s child: (1) Peter’s declaration; 

and (2) Probate Code section 21115. 

On June 26, 2019, the parties returned for a hearing on the 

consideration of extrinsic evidence. After argument, the trial 

court took the matter under submission. 

On July 16, 2019, the court ruled against the trustee and in 

favor of Kira and Damian. Focusing on the trustor’s intent as 

expressed in the words of the trust itself, the court concluded that 

the word “grandchild” was not ambiguous and was not amenable 

to the restrictive definition the trustee sought to impose. The 

court found Peter’s declaration irrelevant, declining to accept his 

after-the-fact attempt to “define a term that, on its own, 

expresses no doubt as to its meaning.” Finally, the court rejected 

the trustee’s reliance on the current statute as inapposite. 

Anton, through his guardian ad litem, filed notices of 

appeal in each of the cases. No other party appealed.9 We have 

consolidated the six appeals for resolution in a single opinion.

9 The parties do not discuss whether Anton has standing in 

each case, nor any impact of the failure of the trustee and Lucy to 

appeal. 
10

DISCUSSION

Because the trustee interpreted the trust, it is unnecessary 

at the outset for us to do so.10 Our task is to determine only 

whether the trustee’s interpretation is reasonable. 

1. The Trustee’s Interpretation Will Be Upheld if 

Reasonable

In this case, the trustee sought approval of its construction 

of the trust. The terms of the trust granted the trustee the power 

to construe the trust, but an interpretation would only be binding 

if it was adopted after obtaining the advice of counsel and if the 

construction was “reasonable.” The Probate Code is in accord; “a 

discretionary power conferred upon a trustee is not left to the 

trustee’s arbitrary discretion, but shall be exercised reasonably.” 

(Prob. Code, § 16080.) A trustee “petitioning for instructions as 

to the exercise of a discretionary power has the burden of proving 

the exercise will be reasonable.” (Estate of Nicholas (1986) 

177 Cal.App.3d 1071, 1087.) “[T]he basic inquiry, whenever the 

exercise of a trustee’s discretion, absolute or otherwise, is 

challenged, is always whether the trustee acted in the state of 

mind contemplated by the trustor.” (Estate of Greenleaf (1951) 

101 Cal.App.2d 658, 662.) 

When a trustee is granted a power to act, “the court will not 

control the trustee’s actions exercised pursuant thereto merely 

because it disagrees with him, but it must find some abuse of 

discretion or bad faith before it will interfere. [Citation.] Too, 

while the court may not substitute its judgment for that of the 

10 For the purposes of our discussion, we refer to “trust” in the 

singular, recognizing that a virtually identical analysis applies to 

all six trusts.
11

trustee, if it finds on substantial evidence that his powers have 

been reasonably exercised, the question is not open to review 

[citation]; a contrary finding, of necessity, is governed by the 

same legal principle.” (Estate of Flannery (1969) 269 Cal.App.2d 

890, 896.) Here, the trial court construed the contractual 

language as a matter of law, effectively determining the trustee 

did not meet its burden of proof. When an appellant challenges a 

trial court’s finding that it did not meet its burden “ ‘ “the 

question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. 

[Citations.] Specifically, the question becomes whether the 

appellant’s evidence was (1) ‘uncontradicted and unimpeached’ 

and (2) ‘of such a character and weight as to leave no room for a 

judicial determination that it was insufficient to support a 

finding.’ ” ’ ” (Patricia A. Murray Dental Corp. v. Dentsply 

Internat., Inc. (2018) 19 Cal.App.5th 258, 270.) Thus, we must 

determine whether the appellant’s evidence necessarily 

established that the trustee’s interpretation of the trust was 

reasonable.

Our analysis begins and ends with whether the use of the 

term “grandchild” in the trust is reasonably susceptible to the 

interpretation of the trustee—that is, that it applies to 

grandchildren born out of wedlock only if they lived a substantial 

time, while minors, in the home of Peter’s child. As long as 

“grandchild” can be reasonably construed as the trustee 

construed it, we must reverse. 

2. The Language is Reasonably Susceptible to the 

Trustee’s Interpretation

First, we consider the language of the trust itself. Then we 

turn to the extrinsic evidence relied on by the trustee. Finally, 
12

we address two cases which have addressed similar factual 

scenarios.

A. The Language of the Trust

We consider the language of the trust as a whole. (Trolan 

v. Trolan (2019) 31 Cal.App.5th 939, 949.) Here, the trust 

contains no definition of “grandchild.” To be sure, it contains 

language confirming that “ ‘child,’ ‘children,’ and ‘issue’ whenever 

used herein, shall include legally adopted persons, whether 

adopted by Grantor or by Grantor’s natural or adopted children.” 

But this is of little use to the question before us, as it fails to 

include “grandchild,” and also fails to address children born out 

of wedlock. Indeed, it is, in some ways, not a definitional clause 

at all; it confirms that adopted children are “include[d]” in the 

terms, but does not otherwise identify “child,” “children” or 

“issue.” 

B. Extrinsic Evidence

There are two pieces of extrinsic evidence on which the 

trustee relies: (1) Peter’s declaration; and (2) relevant legal 

authority.

1. Peter’s Declaration

The trustee relied on Peter’s 2018 declaration in which he 

set forth what he believed he had intended, in 1980, with respect 

to Stephen’s children who had not yet been born.

We are looking for evidence of the trustor’s intent at the 

time of execution. (Estate of Russell (1968) 69 Cal.2d 200, 208-

209.) A decades-later declaration as to the testator’s prior intent 

may well constitute evidence of the testator’s intent, but also may 

be an attempt at revisionist history. (Cf. Estate of Pierce (1948) 

32 Cal.2d 265, 273-274 [the remoteness of the extrinsic evidence 

goes to its weight].) To the extent, however, it can be perceived 
13

as a statement of Peter’s unspoken intent regarding a 

circumstance he had not expressly considered because he never 

imagined it could be otherwise, it may be relevant and may 

provide a reasonable basis for the trustee’s interpretation.11 

Other evidence convinces us that Peter’s statement of intent is 

worthy of some level of consideration in determining the 

reasonableness of the trustee’s interpretation – namely the law at 

the time of the creation of the trusts suggests Peter’s declared 

view was, in fact, common belief.

2. Governing Authority

“A testator is presumed to be aware of the public policy 

reflected in the statutory definitions of the terms used in a will at 

the time the will is executed and to intend that those definitions 

be followed in construction of the will unless a contrary intent is 

expressed in the will.” (Newman v. Wells Fargo Bank (1996) 

14 Cal.4th 126, 136.) This does not extend to future law; we do 

not presume a trustor would have intended to adopt an unknown 

nonexistent statute as the means of interpreting his trust. (Id. at 

p. 142.)

11 In his opening brief, Anton suggests that, when Peter 

drafted the trusts, he “probably never gave a thought to the 

possibility that his son would father a child or two that he would 

never meet.” In reply, Kira suggests that this concession 

confirms that Peter did not contemplate such grandchildren at 

the time of drafting, and therefore his later declarations could not 

reflect his intent at the time. This is an oversimplification. A 

person who believes the only true children are those raised in the 

family may not expressly consider sperm donation, egg donation, 

or children born out of wedlock and raised by another, but the 

belief may still hold true.
14

The parties disagree as to precisely how the law treated 

children born out of wedlock in 1980—and, therefore, the law of 

which we presume Peter to have been aware. 

As Witkin acknowledges, historically, a child “born out of 

wedlock was excluded unless legitimated or acknowledged for 

inheritance.” (Witkin, Summary of Cal. Law (11th ed. 2020) 

Wills and Probate, § 250.) However, the law has since evolved, 

and a child born out of wedlock is deemed included, unless a 

contrary intent is shown. (Ibid.)

Presently, Probate Code section 21115 provides a rule of 

interpretation for terms of class gifts or relationship.12 

Specifically, Probate Code section 21115, subdivision (a) provides 

that, except as in subdivision (b), “halfbloods, adopted persons, 

persons born out of wedlock, stepchildren, foster children, and the 

issue of these persons when appropriate to the class, are included 

in terms of class gift or relationship in accordance with the rules 

for determining relationship and inheritance rights for purposes 

of intestate succession.” However, subdivision (b) provides an 

exception for gifts from someone not the natural parent (e.g., a 

grandparent). Specifically: “In construing a transfer by a 

transferor who is not the natural parent, a person born to the 

12 Kira and Damian suggest Probate Code section 21115 

applies only to “class gifts,” while each individual grandchild 

trust names a single beneficiary, and therefore is not a “class 

gift.” Regardless of whether the grandchildren trusts, taken 

together, constitute a “class gift,” the language of the statute is 

not limited to class gifts, but speaks of “terms of class gift or 

relationship.” (Prob. Code, § 21115, subd. (a).) “Grandchild” is a 

term of relationship.
15

natural parent shall not be considered the child of that parent 

unless the person lived while a minor as a regular member of the 

household of the natural parent or of that parent’s parent, 

brother, sister, spouse, or surviving spouse.”13 

Probate Code section 21115 is based on former 

section 6152, which was itself adopted in 1983, as part of an 

overhaul of the law of wills and intestate succession. (Stats 1983, 

ch. 842, § 55.) The Law Revision Commission comment to the 

current statute explains that it “construes a transfer to exclude a 

child born out of wedlock (where the transferor is not the parent) 

if the child never lives while a minor as a regular member of the 

parent’s household. A child is included in class gift terminology 

in the transferor’s instrument if the child lived while a minor or 

as a regular member of the household of the parent’s spouse or 

surviving spouse. As a result, a child born of a marital

relationship will almost always be included in the class, 

consistent with the transferor’s likely intent.”14 (Law Revision

13 Probate Code section 21115, subdivision (b) contains 

similar limiting language regarding adopted children: “In 

construing a transfer by a transferor who is not the adoptive 

parent, a person adopted by the adoptive parent shall not be 

considered the child of that parent unless the person lived while 

a minor (either before or after the adoption) as a regular member 

of the household of the adopting parent or of that parent's parent, 

brother, sister, or surviving spouse.” Although we are not 

concerned with the issue of adoption, the fact that the statute 

provides the same rule for adopted children as it provides for

children born out of wedlock suggests that similar policy 

considerations apply to both. 
16

Com. com. to Prob. Code, § 21115; see also Witkin, Summary of 

Cal. Law (11th ed. 2020) Wills and Probate, § 250 [citing Law 

Revision Com. com. to Prob. Code former § 6152, subd. (b)].)

In sum, the law long before the execution of the trust would 

have excluded all children born out of wedlock from the definition 

of “grandchild,” and the law in effect now has liberalized to the 

point of including only out-of-wedlock grandchildren who have 

lived as regular members of the household of the natural parent 

through whom they claim.

Kira and Damian argue, however, that for a brief period 

coinciding with Peter’s execution of the trust, the law provided 

that children born out of wedlock were presumed to be considered 

“grandchildren” for the purpose of inheritance, even if they did 

not live as regular members of the household of the parent 

through whom they sought to inherit. But they rely on no 1980 

law which directly supports this. For his part, Damian suggests 

that, under section 286 the Restatement (First) of Property, 

enacted in 1940, children born out of wedlock are normally 

14 The legislative history of Probate Code former section 6152 

confirms this. “Unless otherwise provided in the will, a child 

born out of wedlock may take as a child of its natural parent only 

if (1) the child is the child of the testator or (2) the child lived 

while a minor as a regular member of the household of the 

natural parent or of the natural parent’s parent, brother, sister, 

or surviving spouse. Thus, for example, if the testator makes a 

devise to the children of the testator’s sister, a child of the sister 

born out of wedlock who never lived with the sister or one of the 

designated relatives of the sister does not take under the will as a 

child of the sister.” (Cal. Law Revision Com. Executive Secretary 

John DeMoully, letter to the Members of the Assem. Com. on the 

Judiciary, regarding Assem. Bill Nos. 25 and 68, April 11, 1983, 

attached “Explanation of Assembly Bill No. 25,” p. 3.)
17

excluded, but may be included when “a contrary intent of 

conveyor is found from additional language or circumstances.” 

He finds such circumstances in Stephen’s acknowledgement of 

Damian as his son. But the Restatement provision looks for a 

contrary intent of the conveyor (here Peter); actions showing a 

contrary intent on the part of Stephen are not relevant.15 Kira 

relies on favorable language from sections 25.2 (defining “child” 

to include illegitimate children in class gifts) and 25.8 (extending 

section 25.2 to grandchildren) of the Restatement Second of 

Property, enacted in 1988. But this Restatement post-dates the 

execution of the grandchildren’s trusts by eight years, and 

California’s adoption of the contrary rule in Probate Code section 

21115 by five years.

To be sure, at the time the trust was executed, the law was 

evolving to treat children born out of wedlock more equally with 

respect to the right to inherit from their parents (e.g., Trimble v. 

Gordon (1977) 430 U.S. 762, 763, 770-771 [striking down, as 

violative of equal protection, an Illinois law which allowed 

illegitimate children to inherit via intestacy from their mothers 

but not their fathers, while legitimate children could inherit from 

both].) But this does not mean that the law, or policy, of 

California was such that children born out of wedlock and raised 

by one parent would be considered the grandchildren of the 

parents of the parent who did not raise them.

Instead, it appears to us that the statute enacted in 1983, 

and understood to then effectuate the likely intent of testators, 

15 In fact, this is the precise distinction recognized in Probate 

Code section 22215 subdivision (b)’s different treatment of gifts 

when the testator is the parent.
18

also effectuated the likely intent of testators in 1980. Kira and 

Damian have identified nothing in the history of Probate Code 

section 21115 that gives rise to an inference that it was 

understood to effect a change in the then-existing understanding 

of how out-of-wedlock children were to be treated in transfers 

from people who were not their parents. (Cf. Abramovic v. 

Brunken (1971) 16 Cal.App.3d 719, 723-724 [recognizing, with 

respect to adoption, that there are strong policy reasons which 

support treating an adopted child the same as a biological one 

with respect to the child’s adoptive parents, but that no such 

policy reasons apply with respect to the adoptive parents’ 

ancestors].)

Looking at it another way, we underscore that we are not 

interpreting the trust document itself, but only determining 

whether the trustee’s interpretation of “grandchild” is a 

reasonable one. To say that it is not reasonable would be to say 

that, three years after the trust was executed, the Legislature 

adopted a rule of construction which was, at the time, not a 

reasonable reflection of the general intent of trustors. This we 

cannot do.

C. Case Authority

There are two cases that have dealt with similar 

circumstances—one of which seems to favor Kira and Damian, 

the other the trustee and Mary’s children. The cases are not 

contradictory, however, and the fact which distinguishes them 

compels the conclusion that the trustee and Mary’s children have 

the better argument.

The first is In re Estate of DeLoreto (2004) 118 Cal.App.4th 

1048. In that case, the court was concerned with a 1964 will. In 

the will, the testator indicated that he had three children and 
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four grandchildren. The will created a residuary trust under 

which the income would go to the testator’s children and the 

corpus to the testator’s grandchildren. When the testator died in 

1966, he had three children—two were childless and the third 

had the four grandchildren identified in the will. Nearly 20 years 

later, one of the testator’s formerly childless children adopted two 

adults (the niece and grandniece of his deceased wife), who had 

never lived in his home as children. When he died, the adopted 

adults claimed a right to a share of the trust corpus as 

grandchildren of the testator. (Id. at pp. 1051-1052.) The trial 

court denied them relief and Division Six of the Second Appellate 

District affirmed. (Id. at pp. 1050-1051.) Specifically, the court 

relied on Probate Code section 21115 to interpret the will and 

conclude that the testator had not intended to benefit adult 

adopted grandchildren who had not lived with his son as 

children. (DeLoreto, at pp. 1052-1053.) This was true even 

though the will predated section 21115. Section 21115 is a rule of 

construction, which applies to all instruments, regardless of when 

executed. (§ 21140.) The court did not find any term in the will 

ambiguous; it simply determined whether the will was 

reasonably susceptible of the interpretation suggested by the rule 

of construction. As it was, section 21115 applied. (DeLoreto, at 

pp. 1053-1054.)

Six years later, Division Eight of the Second Appellate 

District resolved Citizens Business Bank v. Carrano (2010) 

189 Cal.App.4th 1200 (Carrano). In Carrano, the trustors had a 

child, Christopher, who fathered a child out of wedlock by 

drugging his physical therapist and having sex with her against 

her knowledge. She and her husband raised the child, Jonathan, 

as their own, unaware of his true parentage for a number of 
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years. Christopher, however, bragged about having fathered 

Jonathan, and there is evidence that his parents, the trustors, 

were aware that Christopher claimed the child. (Id. at pp. 1202-

1204.) The trust in dispute was not irrevocable; the trustors 

amended it a number of times. Not trusting Christopher with 

money, they amended it so that he would receive income, but not 

the assets. In the event Christopher did not survive his parents, 

his “issue” would receive the trust assets. The trustors 

repeatedly amended the trust to address whether adopted 

children would be included in “issue,” but did not specifically 

address children born out of wedlock. (Id. at p. 1203.) 

Christopher predeceased his father and left three children, all 

born out of wedlock. The appeal addressed whether Jonathan, 

who had been raised as part of another family unit, was entitled 

to a share of the trust assets. (Id. at pp. 1202, 1204.) 

The trial court concluded the trust’s silence on the precise 

circumstances of Jonathan’s situation constituted an ambiguity, 

and, after considering extrinsic evidence, concluded the trustors’ 

intent had been to exclude Christopher’s children for whom he 

was not legally a parent. (Carrano, supra, 189 Cal.App.4th at

p. 1204.) The appellate court considering the issue de novo, 

reversed, concluding that the trust was unambiguous—in that it 

defined “issue,” but made no effort to exclude Jonathan. The 

court explained that the trustors, “through their lawyers, chose to 

define the term ‘issue’ as a class of people who were lineal 

descendants of Christopher and who had not been adopted out of 

the bloodline. The definition of ‘issue’ was drafted by lawyers and 

amended. Neither of those restrictions apply to Jonathan, 

plainly Christopher’s lineal descendant. That [the trustors] 

failed to expressly describe Jonathan’s ‘special case’ does not 
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create a latent ambiguity.” (Id. at pp. 1207-1208, fns. omitted.) 

The court confirmed its result with the extrinsic evidence that 

the grandparents knew Christopher boasted that Jonathan was 

his son, but did nothing to expressly disinherit Jonathan. (Id. at 

p. 1208.)

Carrano distinguished DeLoreto on the basis that, in 

DeLoreto, the critical terms were undefined, so reliance on 

statutory rules of interpretation was appropriate. In Carrano, in 

contrast, the trustors had actually defined “issue” as “lineal 

descendants.” (Carrano, supra, 189 Cal.App.4th at p. 1208.) 

Here, like in DeLoreto, Peter did not define the key term, 

“grandchild,” in the trust. Like DeLoreto, we conclude the trust is 

reasonably susceptible to the trustee’s interpretation. 

Accordingly, we reverse. 

DISPOSITION

The trial court’s orders interpreting the trusts in the six 

probate matters are reversed. The matters are remanded with 

directions to confirm the trustee’s interpretation of the trusts. 

Each party is to bear its own costs.

 RUBIN, P. J.

WE CONCUR:

BAKER, J. KIM, J.