BIRNS, J.

In this appeal from part of a decree entered in the Surrogate's Court, we are asked to decide whether the term "issue" in a will should be construed to include illegitimate grandchildren of an income beneficiary of a trust established under the terms of that will.

Mary Hoffman, the testatrix died in 1951. Her will established a trust for the benefit of her two cousins and provided that when the first of the two should die, his one-half share of the income should be paid for the remainder of the trust term "to his issue".

One cousin is still living; the other died in 1965, survived by a daughter and a son named Stephen. Stephen died in 1972 leaving two children, the infants represented by respondent-appellant herein. Stephen never married the mother of these children nor was an order of filiation entered. The Surrogate, however, determined that the two children were indeed the children of Stephen.

Relying on precedent, the Surrogate ruled that the two children, being illegitimate, could not inherit (Matter of Flemm, 85 Misc.2d 855; Matter of Belton, 70 Misc.2d 814; Matter of Hendrix, 68 Misc.2d 439) because the term "issue" as used in the will meant lawful issue only (Matter of Underhill, 176 Misc. 737), and absent an intention to the contrary it could not be assumed that the testatrix intended illegitimate descendants as the object of her bounty (Gelston v Shields, 78 N.Y. 275).

In this court, as she did below, respondent-appellant asserted that inasmuch as the word "issue" in the provision of the will under consideration was not qualified by the word "lawful", the question of legitimacy was not in decedent's mind when she made her will. In addition, the change in conventional attitudes towards illegitimates, as reflected in statutes and decisions, would warrant a construction of the word "issue" as including illegitimates, in the absence of contrary intent to exclude them.

Petitioner-respondent emphasizes that under settled case law, where the word "issue" appears in a will it will be interpreted to mean only lawful descendants in the absence of clear evidence of a contrary intent of a testator.

We recognize that precedents do hold that in the absence of an express intent to the contrary by a testator, the word "issue" presumes lawful issue and not illegitimate offspring. This presumption has its roots in an earlier society where there was no sense of injustice in the teaching that the sins of the fathers were to be visited upon their children and succeeding generations (Exodus, 20:4; Shakespeare, Merchant of Venice, act III, scene 5, line 1).

It is evident from these precedents that "presumed intent" on the part of a testator to include lawful descendants only in the use of the word "issue" was designed to harmonize testamentary language with the social mores of the times. The judicial policy to afford legitimate children a preferred status in society has placed upon illegitimates the burden of demonstrating an intent on the part of a testator to include such illegitimates in his testamentary use of the word "issue".

Because of changes in societal attitudes and recent developments in constitutional law, we are of the opinion that, to the extent that precedents require this burden to be placed upon illegitimate claimants under a will, the law is not only outmoded, but discriminatory and should be rejected. We would reverse.

English legal history relates the disabilities suffered at law by illegitimates: "The early common law held that a bastard could not be a lawful heir, nor could one not born in lawful wedlock be regarded as legitimate * * * If a person laid claim to an estate as heir, and his heirship was disputed on the ground that he was born out of lawful wedlock, all proceedings in the common law courts stopped." The claim was then weighed by the ecclesiastical court. (Reppy and Tompkins, Historical and Statutory Background of the Law of Wills, p 74.)

Bottomed upon the ancient concept that an illegitimate child was indeed "filius nullius", i.e., a child of nobody, thus without legal status (New-Haven v Newtown, 12 Conn. 165; Dickinson's Appeal from Probate, 42 Conn. 491), many jurisdictions, like New York, held the word "issue" to mean only legitimate issue (Page v Roddie, 92 Okla. 236; King v Thissell, 222 Mass. 140; Hardesty v Mitchell, 302 Ill. 369). Courts thus denied "illegitimate" claimants the right to share under provisions of wills not unlike the one before us.

However, this archaic concept, with its moralistic overtones, was not accepted by all courts. Connecticut in 1914 first repudiated any common-law principle which limited the words "child" or "children" to those only of legitimate status, observing that "by reason of our recognition of the relation of parent to child between a mother and her illegitimate offspring, that no statute has been needed in this State to accomplish results which humanity and natural justice dictated and which could be arrived at elsewhere only through statutory intervention." (Eaton v Eaton, 88 Conn. 269, 280.) And in a companion case the same court ruled that in the same will under consideration the words "issue of his or her body" did not reflect a limited use of those words, but included illegitimate issue, in the absence of anything to indicate the use of the words in any other than their prima facie signification (Eaton v Eaton, 88 Conn. 286).

New York courts, in the main, have not subscribed to the Connecticut view but have clung to the rule that where such words are used in a will, the word "child" means "lawful child," and the word "issue" means "lawful issue", in the absence of a manifestation of contrary intent. (Central Trust Co. v Skillin, 154 App. Div. 227.)

Research has disclosed only six cases in which the courts of this State have actually construed "issue" or "children", not qualified by "lawful" or in any other way, and not otherwise explained, so as to exclude illegitimates. (Collins v Hoxie, 9 Paige Ch 81 [Court of Chancery, 1841]; Van Voorhiss v Brintnall, 23 Hun 260 [General Term, 2d Dept, 1880]; Miller v Miller, 79 Hun 197 [General Term, 5th Dept, 1894]; Braun v Gilsdorf, 126 Misc. 366 [Sup Ct, N Y County, 1926]; Matter of Gould, 172 Misc. 396 [Surrogate's Ct, N Y County, 1939]; Matter of Underhill, 176 Misc. 737 [Surrogate's Ct, N Y County, 1941]).

It is noted that the earliest of these decisions is over 100 years old, and the most recent is 35 years old. Two are by the same Surrogate. Only two are appellate decisions, the latest of which is 1894. Apparently the precise question before us has never been decided by the Court of Appeals or this court.

Illustrative of varied expressions of the New York rule is the recitation found in Matter of Underhill (supra, pp 738-739): "The meaning to be ascribed to the word 'issue' depends upon the intention of the testator as derived from the context of the will or such extrinsic evidence as may be considered * * * The test is what was included 'in the nomenclature or vocabulary of the testator' * * * His intention is to be construed in the light of the statutes and decisions applicable at the time he executed his will and codicil."

The Surrogate rejected the argument, that legislation then in effect (Domestic Relations Law, § 24; Decedent Estate Law, § 83) would justify a view that the testator's intent was not to exclude illegitimate descendants from sharing under his will. The Surrogate ruled that this legislation could not serve "to control the construction of the word 'issue' in a will." (Matter of Underhill, supra, p 740.)

However, there are a number of New York decisions wherein courts struggled to obtain relief from the common-law strictures to which we have referred. These decisions have construed the expression "lawful issue" in situations where the parents married or attempted to marry after the child's birth. (New York Life Ins. Trust Co. v Viele, 161 N.Y. 11; Olmsted v Olmsted, 190 N.Y. 458; United States Trust Co. v Maxwell, 26 Misc. 276; Central Trust Co. v Skillin, 154 App. Div. 227 [2d Dept, 1912]; Matter of Sheffer, 139 Misc. 519; Matter of Vought, 29 A.D.2d 97 [1st Dept, 1967].) Although these cases are not in point, reference to one or two may prove helpful.

For example, in New York Life Ins. Trust Co. v Viele (supra) the court rejected claims by an adopted child to property left by will to "lawful issue", "lawful issue" being held to be "nothing more than a descendant."

In Matter of Vought (supra) a child born illegitimate whose parents later went through a ceremonial marriage believed valid by the mother but in fact not valid because the father was already married, was determined by this court to be the "lawful issue" of the father, entitled to collect as such the benefits of a trust. This court said that under New York law in effect when the trust was created, "lawful issue" did not mean that the child must have been born of a valid marriage, but that he had been legitimatized by reason of the marriage, and once legitimatized he became "lawful issue". A child could be legitimatized by the subsequent lawful marriage of the parents under New York law then, and now. Furthermore, under section 1135 of the Civil Practice Act then in effect, a child of a void or voidable marriage was to be considered the legitimate child of the parent capable to contract such marriage as long as one of the parties entered the marriage in good faith, and in addition the court could decide that a child of the said marriage was a legitimate child of the person incompetent to marry. This court held the child was the lawful issue of his father and therefore entitled to the benefits of the trust for the father's lawful issue.

The court noted a legislative intent not only to protect children born illegitimate, but to provide ways to make illegitimate children legitimate, and thereby give them rights similar to children born legitimate. This court rejected the definition in New York Life Ins. Trust Co. v Viele (supra) that lawful issue meant nothing more than descendant. Otherwise, the court held, the term "lawful" would have no meaning.

However, in Central Trust Co. v Skillin (supra, pp 229, 230) the court said the words "lawful issue" have an accepted meaning, and that "All children are 'issue' of their parents, for the operation of natural laws favorable to the procreation and birth of offspring is not affected by the existence or nonexistence of a marital contract. But when this word relating to children is qualified by the adjective 'lawful,' it is ordinarily understood to mean those begotten and born in lawful wedlock and none others." Nevertheless, the court went on to say that at common law the words "child" and "issue", even when not qualified by "lawful", excluded all but the lawful "child" or "issue".

Our statutes do provide continuing evidence of legislative concern for illegitimate children as reference to various sections of the Estates, Powers and Trusts Law will demonstrate.

While nothing in the EPTL provides that illegitimate children are "issue" for the purposes of taking under a will, rights of illegitimates to share in the estates of their kin are expanding. In fact, present attitudes appear to reject an inferior social or legal status for illegitimates.

Appended hereto is a further listing of statutes, State and Federal, not represented as complete, but sufficient to demonstrate significant changes in societal attitudes vis-a-vis illegitimate children, each of which was directed toward the elimination of disadvantages, legal and social, suffered by illegitimates. This parade of legislation was well underway, when in 1950, the testatrix executed the will before us.

The question raised is whether social and statutory changes require a reconsideration of the rule which presumed an

intent by testatrix to exclude illegitimate descendants in sharing under her will.

Certainly, it cannot be said, as a matter of fact, that the testatrix was aware of these changes in societal attitudes as evidenced by the legislation referred to, or aware of community attitudes towards premarital sex or sex without marriage. Nor can it be said with any degree of assurance that at the time she executed her will she was provided with an explanation of the word "issue" which appeared on the typewritten pages of that document. It is just as likely that the word "issue" in her mind had a meaning no different from "progeny" or "offspring". (Webster's New International Dictionary, 2d ed, G. C. Merriam Co., 1947.)

The will itself supports the conclusion that the bequest to her cousins was of paramount concern in establishing the trust. It is most unlikely that she gave any more than passing thought to the children who now, 25 years after her death, claim under her will, particularly as to whether or not they would be legitimate.

The presumed intent of the testator with which all the precedents are concerned, although represented as rebuttable, is in fact, in most cases irrebuttable. The passage of time has made it impossible to establish that the testatrix did not intend to exclude illegitimate descendants from sharing under her will. This difficulty of proof was highlighted by a former Surrogate who said, "Indeed, a mere comparison of the material dates demonstrates the impossibility of presenting such evidence." (Matter of Underhill, 176 Misc. 737, 740, supra.)

To continue to rely upon these precedents and then declare that in using the word "issue" in her will, testatrix intended only lawful issue and not illegitimates is to attribute to her a frame of mind not at all supported by the facts. We recognize that the testatrix should possess the broadest freedom of choice in making known the objects of her bounty, and that it is the duty of the court to ascertain the testatrix's intent. Nevertheless, the court should not under the guise of determining the testatrix's intent substitute its own preference as to the legatees who shall take under the will. (See Krause, Illegitimacy: Law and Social Policy, p 94.) There should be a demonstrable relation between judicial interpretation of a will and the testatrix's actual frame of mind. (Matter of Bloomingdale, 278 N.Y. 435; Matter of Niedelman, 6 A.D.2d 291.) "Certainly the automatic exclusion of illegitimates from a bequest to a category such as 'children' would not be permissible. On the other hand, a bequest to legitimate 'children' would cut off any claim an illegitimate child might assert." (Krause, Illegitimacy: Law and Social Policy, p 94.)

We have been instructed that "[t]hat court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society, and no considerable property rights have become vested in reliance of the old rule. It is thus great writers upon the common law have discovered the source and method of its growth, and in its growth found its health and life. It is not and it should not be stationary. Change of this character should not be left to the legislature." (Dwy v Connecticut Co., 89 Conn. 74, 99, WHEELER, J.)

The Court of Appeals has stated, just recently: "* * * from the earliest times the doctrine of stare decisis did not require a strict adherence to precedents in every instance * * *" (Matter of Eckart, 39 N.Y.2d 493, WACHTLER, J.)

There are cases also where "the rule of adherence to precedent, though it ought not be abandoned, ought to be in some degree relaxed." (Cardozo, Nature of the Judicial Process, in Selected Writings of Benjamin Nathan Cardozo, [Margaret E. Hall ed 1947], p 171.) In the case before us, we are of the opinion that rigid adherence to precedent will produce a result not warranted by facts but rather by adherence to an anachronistic rule.

Therefore we reject the rule that where the word "issue", standing alone, appears in a will, it will be interpreted to include within its meaning only lawful descendants. We hold that the word "issue" should be construed to refer to legitimate and illegitimate descendants alike in the absence of an express qualification by the testatrix.

Further justification for our decision today can be found in expanding concepts of the Equal Protection Clause (US Const, 14th Amdt). To construe "issue" in a will as excluding illegitimate children otherwise entitled to inherit thereunder, is, as stated before, nothing more than the substitution of judicial preference for a testator's intent. Such preference, under the guise of judicial construction, we believe, is State action. (See Shelley v Kraemer, 334 U.S. 1.) State action is proscribed if it promotes discrimination based upon an unconstitutional classification (Levy v Louisiana, 391 U.S. 68; Glona v American Guar. Co., 391 U.S. 73; Weber v Aetna Cas. Sur. Co., 406 U.S. 164; but cf Labine v Vincent, 401 U.S. 532).

In none of the cases just cited was the Supreme Court applying constitutional scrutiny to the terms of a will. The court, however, was seeking to determine whether Louisiana legislation providing for the recovery or distribution of death benefits unconstitutionally discriminated against illegitimate children.

In holding that illegitimates are covered by the Equal Protection Clause, the Supreme Court of the United States struck down as discriminatory a statute which provided that illegitimate children did not have the same right to share in the death benefits under a Louisiana workmen's compensation statute as did legitimate children.

Observing that this differentiation and classification could not be related to any legitimate State interest, that court said: "Imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent." (Weber v Aetna, supra, p 175.) Such discrimination "is clearly invidious" (Labine v Vincent, supra, dissenting opn of BRENNAN, J., p 558).

Because of the expanding concept of equal protection we should not adhere rigidly to the rules enunciated in the cases cited as precedents herein. To do so would require us to hold that illegitimates enjoyed a lesser status than legitimate children before the law in cases such as the one before us.

In rejecting archaism, we do no more in this appeal than hold that the word "issue" as used by testatrix in her will should have no meaning other than that ordinarily and customarily imputed to persons in its usage in the absence of any manifestation of an intent to the contrary. Thus, the test set forth in Matter of Underhill (supra) is still viable as long as it is not used to disguise judicial preferment. Accordingly, the law will not be required to discriminate against children labeled illegitimate through no fault of their own.

A remand in this case is not necessary inasmuch as the parties were before the Surrogate on an agreed statement of facts. Accordingly, the decree of the Surrogate should be reversed on the law and on the facts and upon a reading of the will, it is determined that the testatrix intended in her use of the word "issue" in her will legitimate and illegitimate descendants. The will is so construed with costs to all parties appearing and filing briefs payable from the trust estate.

MURPHY, J.P., CAPOZZOLI, NUNEZ and LYNCH, JJ., concur.

Decree of the Surrogate's Court, New York County, entered on September 23, 1975, so far as appealed from, unanimously reversed, on the law and on the facts, and upon a reading of the will, it is determined that the testatrix intended in her use of the word "issue" in her will legitimate and illegitimate descendants. The will is so construed with $60 costs and disbursements of this appeal to all parties appearing and filing briefs payable from the trust estate.