Estate of Jenkins, Matter of

Decision Date25 August 1994
Docket NumberNos. 93CA0229,93CA0831,s. 93CA0229
Citation890 P.2d 188
PartiesIn the Matter of the ESTATE OF Thomas E. JENKINS, Deceased. FIRST INTERSTATE BANK OF DENVER, Petitioner-Appellee, v. Mary E. TAYLOR, Terry Robert Mesch, Sherry Marie Mesch, Mary Frances Machinal, and Gary Willard Mesch, Respondents-Appellees and Cross-Appellants, v. James Thomas McCLAIN, Respondent-Appellant and Cross-Appellee. . II
CourtColorado Court of Appeals

No appearance for First Interstate Bank of Denver.

Durham & Baron, Paul J. Hanley, Denver, for respondents-appellees and cross-appellants.

Don A. McCullough, Denver, for respondent-appellant and cross-appellee.

Opinion by Judge CRISWELL.

Respondent, James T. McClain, appeals from orders of the Denver Probate Court determining that he is not a beneficiary of a testamentary trust established by the will of Thomas E. Jenkins (testator). McClain also appeals from the probate court's order awarding costs and attorney's fees to respondents Terry R. Mesch, Sherry M. Mesch, Mary F. Machinal, Gary W. Mesch (the Mesch grandchildren), and Mary E. Taylor. We affirm.

The facts here are essentially undisputed. The testator died in 1946, leaving a will containing a testamentary trust and a codicil thereto, which he had executed in 1944. At the time of execution, the testator had two daughters, respondent Mary E. Taylor and Jane Taylor. Mary had one child, Teddy Ann, at the time the will was executed in 1944, while Jane had no children. Both daughters and Teddy Ann were specifically provided for in the testator's will. Jane and Teddy Ann are now deceased.

It is undisputed that Jane was sterilized at the testator's behest in the mid-1930's, before his execution of the will. Further, Mary was at the time of execution incapable of having any additional children. Testator was aware of his daughters' infertility at the time he executed his will.

Upon the testator's death in 1946, both daughters and Teddy Ann began to receive monthly disbursements as provided by the trust. After his death, Teddy Ann bore four children (the Mesch grandchildren), who are parties to this appeal.

In 1949, a neighbor, in return for Jane's payment of hospital expenses, "gave" her a new-born baby (respondent James T. McClain), whom she proceeded to raise as her own son. The probate court concluded that James was equitably adopted by Jane, but that she had never legally adopted him.

First Interstate Bank, as trustee under the testator's testamentary trust, filed a petition to determine whether James was a beneficiary of that trust. James later filed a motion requesting that the probate court determine the ultimate beneficiaries of the property of the trust upon its termination.

The probate court concluded that, although James had been equitably adopted by Jane, he was not a beneficiary of the trust. It concluded that, upon the death of Mary, the ultimate beneficiaries of the trust would be the surviving Mesch grandchildren. It also awarded costs and attorney's fees, incurred in opposing James' claim, to Mary and to the Mesch grandchildren.


James first asserts that the trial court erred in determining that the testator intended to exclude any adopted children of his daughters as beneficiaries of his testamentary trust. We disagree.

The testator's will speaks to the disposition of the trust proceeds as follows:



(c) In the case of the death of either of my said daughters without issue then

the monthly payments to the surviving daughter shall be increased to One

Hundred Fifty Dollars ($150) per month, and in the event such daughter so

dying shall be survived by child or children, her lawful issue, then the

one hundred dollars per month herein provided for such daughter shall be used

by my trustee for the support, maintenance and education of such surviving

child or children, except that in the case of my daughter being survived

by any children other than Teddyann [sic] Fellows then the provisions in

this paragraph contained shall be for such other children only and

Teddyann [sic] Fellows shall receive as provided in paragraph (d) hereof;


(e) Upon the death of both of said daughters and when all of the living issue of both of said daughters shall have reached the age of twenty-one (21) years, then my trustee shall divide and distribute the remainder of the trust estate to such then surviving child or children, one-half to the child or children of Mary and one-half of the child or children of Jane, such children to take equally but per stirpes and not per capita. If there be no child or children of either of my said daughters then living then all of said trust estate shall be distributed to the child or children then surviving of the other daughter. (emphasis supplied)

If the terms of a will are unambiguous, extrinsic evidence may not be considered to determine the testator's intent. However, if the language of a will, although clear on its face, is susceptible of more than one meaning when applied to external circumstances, a latent ambiguity exists and extrinsic evidence must be considered. See In re Estate of Holmes, 821 P.2d 300 (Colo.App.1991); In re Estate of Gross, 646 P.2d 396 (Colo.App.1981).

The parties here do not dispute that, given the circumstances at the time the testator executed his will, his use of the terms "children, her lawful issue" and "child or children" in the will create a latent ambiguity. The probate court was, therefore, correct in receiving extrinsic evidence on this point. See In re Estate of Holmes, supra.

In determining a testator's intent, a court should consider the circumstances present at the time of execution, including the relevant laws in effect at that time. See In re Estate of Daigle, 642 P.2d 527 (Colo.App.1982). Here, the probate court considered the state of the law in 1944 and concluded that, at that time, in order to have adopted children of other persons included within the term "children," a testator was required to so specify. We agree with this conclusion.

In Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945), our supreme court held that there is a presumption against adopted children being entitled to take under an instrument executed by a person other than the adoptive parent. The Brunton court concluded, therefore, that the testator's failure specifically to refer to adopted children in a trust, combined with his use of the words, "lawful issue" and "children," evidenced an intent to exclude adopted children as trust beneficiaries.

Similarly, here, the language of the testamentary trust first refers to "children, her lawful issue," and then repeatedly refers to "children." Nowhere is there a reference to the adopted children of any named beneficiary.

James, however, relies on the undisputed fact that, at the time of execution of the will, the testator was aware that neither of his daughters was capable of bearing children. Yet, the trust instrument refers to a child or children of either daughter, in addition to specific references to Mary's daughter, Teddy Ann.

The probate court, however, properly considered other evidence with respect to whether the testator's intent was not to benefit adopted children. Mary testified that her father had stated that he wanted only blood relatives to inherit his estate. There was also testimony that the testator intended that Teddy Ann, and any children she might have in the future, receive the proceeds of the trust upon its termination. Based on this evidence, the court determined that the intent of the testator was not to include adopted children in his will.

The probate court's finding upon this issue is supported by the evidence, and hence, we will not disturb it. See In re Estate of Etchart v. Nelson, 179 Colo. 142, 500 P.2d 363 (19...

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  • Correcting Documentary Misdescription With Reformation
    • United States
    • Colorado Bar Association Colorado Lawyer No. 39-8, August 2010
    • Invalid date
    ...(emphasis added). 9. Mahoney v. Grainger, 186 N.E. 86, 87 (Mass. 1933). 10. Sandstead, supra note 7 at 886. 11. In re Estate of Jenkins, 890 P.2d 188, 190 (Colo.App. 1994), aff'd, 904 P.2d 1316 (Colo. 1995). 12. In re Estate of Gross, 646 P.2d 396, 398 (Colo.App. 1981). 13. Id. 14. See Lang......
  • Chapter 32 - § 32.8 • INTESTACY AVOIDED
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    • Colorado Bar Association Wade/Parks Colorado Law of Wills, Trusts, and Fiduciary Administration (CBA) Chapter 32 Will and Trust Construction
    • Invalid date
    ...P.2d 933; Jones v. Pueblo Sav. & Trust Co., 87 P.2d 2 (Colo. 1939); Estate of Bennett, 789 P.2d 446 (Colo. App. 1989); Estate of Jenkins, 890 P.2d 188 (Colo. App. 1994), aff'd, 904 P.2d 1316 (Colo. 1995). ...
  • Chapter 32 - § 32.14 • EXTRINSIC EVIDENCE — REFORMATION
    • United States
    • Colorado Bar Association Wade/Parks Colorado Law of Wills, Trusts, and Fiduciary Administration (CBA) Chapter 32 Will and Trust Construction
    • Invalid date
    ...In re Ferguson Trusts, 929 P.2d 33 (Colo. App. 1996) (patent ambiguity resolved by evidence not rules of construction) Estate of Jenkins, 890 P.2d 188 (Colo. App. 1994), aff'd, 904 P.2d 1316 (Colo. 1995); and Estate of Sanstead, 897 P.2d 883 (Colo. App. 1995). Note that in applying the Unif......

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