Read v. Legg

• Decision Date: 13 June 1985
• Docket Number: No. 84-69.,84-69.
• Citation: 493 A.2d 1013
• Parties: Suzanne Nelson Legg READ, et al., Appellants, v. Katherine Kent LEGG, et al., Appellees.
• Court: D.C. Court of Appeals

493 A.2d 1013

Suzanne Nelson Legg READ, et al., Appellants, v. Katherine Kent LEGG, et al., Appellees.

No. 84-69.

District of Columbia Court of Appeals.

Argued November 7, 1984.

Decided June 13, 1985.

John Whitney, Washington, D.C., for appellants.

Charles J. Brown, for appellees.

Before NEBEKER, FERREN and ROGERS, Associate Judges.

ROGERS, Associate Judge:

This appeal is taken from a partial summary judgment that appellees, adopted children, are entitled to inherit as "lineal descendants" under a testamentary trust created by their adoptive father's grandfather.¹ Appellants are natural blood relatives, great-grandchildren and great-great-grandchildren, of the testator. Since appellants have failed to show clear evidence of the testator's actual intent to exclude adopted children, Johns v. Cobb, 131 U.S. App.D.C. 85, 402 F.2d 636 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 781 (1969), we affirm.

I

William Beale Hibbs, the testator, executed his will on February 5, 1931, designating as co-trustees and co-executors the American Security and Trust Company and John S. Flannery, Esquire, the presumed will drafter and a recognized expert in the fields of estate planning and probate. In his will, the testator established a trust consisting mostly of personal property, for the benefit of his only child, Helen Hibbs Legg, under which she was to receive during her life the net income of the trust. Upon her death, the trustees were directed:

to pay said net income, without power of alienation or anticipation, to her lineal descendants per stirpes until twenty (20) years after the death of the last survivor of such of her lineal descendants as shall be living at the time of my death, and then distribute the principal of my said estate . . . among the lineal descendants of my said daughter then living per stirpes. . . . (emphasis in original).

The residuary clause provided:

[I]f my said daughter should die without leaving any lineal descendants living at the time of her death, or should no lineal descendants of my said daughter live until the period of distribution of the residium of my estate . . . then in trust to distribute, assign and convey all my said remaining property and estate among my then living heirs at law and next of kin in the proportion in which they shall be entitled to receive the same as to my real estate under the laws of the descent in the several States where the same is situated, and as to my personal property under the law of the distribution in force in the District of Columbia at the time of my decease.

Helen Hibbs Legg's three male children and a grandchild, who was not an adopted child, were alive when the testator died on January 21, 1937. Mrs. Legg's last son died on December 27, 1976, and she died in 1979. The trust will terminate by its own terms on December 27, 1996, when Mrs. Legg's lineal descendants then living will receive the entire estate. All three of Mrs. Legg's sons married and had children; two sons had children by birth, and the third son had three children, the appellees, by adoption at infancy.

Subsequent to executing his will, the testator created several inter vivos trusts in which he disposed of his other real property not disposed of by inter vivos gift. The two inter vivos trusts at issue in the trial court were executed by the testator on December 31, 1931, and consisted, respectively of a $100,000 trust fund and two pieces of real property. Simply stated, the money trust provided for Helen Hibbs Legg during her lifetime and primarily for her son John, appellees' father, and his issue after Helen's death, but if his issue were extinct before John's youngest child was twenty-one, then one-half of the principal or corpus was to go in fee simple to John's unremarried widow and the other half was to continue in trust for one of Helen's other sons. Under the other trust of two pieces of real property, any trust income was to go to the testator's daughter, Helen, for life and thereafter to her son, John or to his "issue" who survived Helen; provisions were made for Helen's other sons only if John died before age thirty-five or surviving issue of his died before his youngest child attained age twenty-one. At the time of execution of the trusts, John was approximately two years old and his brothers were approximately twenty-one and eighteen years of age.

Helen executed her will on September 28, 1961, shortly after John had adopted a child. She left her estate to John and his "issue," and if none survived her, then to John's widow if living and if not, then to her other heirs at law. She provided in her will that a "legally adopted child shall have the same status, and all relations to or through him shall be determined in the same manner as if such child were a child of the blood of his adoptive parent. . . ." Paragraph NINTH (3). She made no other provision for her two eldest sons or their "issue" because "they are adequately provided for in various trusts created by my father."

II

In reviewing a trial court's grant of a motion of summary judgment, we apply the same standard as the trial court in considering the motion for summary judgment.² Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983); Wyman v. Roesner, 439 A.2d 516, 519 (D.C. 1981). Accordingly, this court will affirm an order granting a motion for summary judgment if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Super.Ct.Civ.R. 56(c). In limited circumstances, where the parties have filed cross motions for summary judgment and the motions "are based on the same material facts and address the same legal issues," the filing of the cross-motions may evidence the absence of any genuine issue of material fact. Holland v. Hannan, supra, 456 A.2d at 814 n. 9 and cases cited. When there is no dispute as to any material fact, the issue on appeal is whether the movant was entitled to a grant of summary judgment as a matter of law. See Basch v. George Washington University, 370 A.2d 1364, 1365, 1368 (D.C. 1977).

It is a cardinal principle of probate law that in construing a will, the intent of the testator is paramount. Wyman v. Roesner, supra, 439 A.2d at 520; Scott v. Thropp, 385 A.2d 1144, 1145 (D.C. 1978); see O'Connell v. Riggs National Bank of Washington, D.C., 475 A.2d 405, 407 (D.C. 1984). Thus the court's function is to ascertain the testator's intent and give full effect to that intention unless contrary to the law. O'Connell v. Riggs, supra, 475 A.2d at 407. To ascertain the testator's intent, the court examines the will as a whole, and not certain portions in isolation. Wyman v. Roesner, supra, 439 A.2d at 520; Scott v. Thropp, supra, 385 A.2d at 1146. The law in effect at the time of the testator's death is the relevant law for determining intent. See O'Connell v. Riggs, supra, 475 A.2d at 408 n. 2. Only if the intent of the testator cannot be discerned from the four corners of the will may the court examine extrinsic evidence to determine intent. Wyman v. Roesner, supra, 439 A.2d at 520; Scott v. Thropp, supra, 385 A.2d at 1146. If the "actual intent" cannot be discerned from the will or extrinsic evidence of record, the court will attribute to the testator an intent which is consistent with current public policy. Johns v. Cobb, supra, 131 U.S.App.D.C. at 87, 402 F.2d at 638.

The trial court found that the testator's "actual intent" regarding adopted children could not be determined from the four corners of the will or relevant extrinsic evidence, and that the will and relevant extrinsic evidence eliminated any inference that the testator intended to exclude adopted children. The court found the testator's will "obviously and successfully was designed to circumvent the rule against perpetuities in order to prolong the duration of the estate for as many years as possible."³ The court deemed it significant that the testator did not limit his beneficiaries to his own lineal descendants but always provided for his daughter and her lineal descendants, and that it was undisputed his daughter, Helen, the principal beneficiary, viewed the adopted children as her lineal descendants. Further, the trial court found that the testator in his deed of trust made John and his issue the second primary beneficiaries; this extrinsic evidence suggested the testator could not have intended the "incongruous" result of precluding inheritance by these same parties. Also persuasive to the trial court was appellees' contention that the conceded preeminence of the drafter of the will argued against finding that the use of the term "lineal descendants" was intended to exclude adopted children, because he easily could have expressly so provided in a single sentence had the testator considered and resolved the issue. The court noted the adoptions were undertaken in good faith and that the issue of how to construe the will had not arisen until Helen Legg's death in 1979.

Appellants contend the trial court erred because the testator's intent can be determined from the language of the will and the surrounding circumstances. Citing Shoemaker v. Newman, 62 App.D.C. 120, 65 F.2d 208, cert. denied, 290 U.S. 656, 54 S.Ct. 72, 78 L.Ed. 568 (1933), and the 1937 adoption statute, they argue the term "lineal descendant" is similar to the term "issue," and that in the 1930's, "issue" was confined to blood relatives.⁴ They also contend the trial court erred in assuming sub silentio that the testator's use of "issue" in the deed of trust was intended to include adopted children. Relying on the analysis of O'Connell v. Riggs, supra, and Riggs National Bank of Washington, D.C. v. Summerlin, 144 U.S.App.D.C. 131, 445 F.2d 201, cert. denied, 404 U.S. 851, 92 S.Ct. 91, 30 L.Ed.2d 91 (1971), appellants argue that for adopted children to be included within the term "lineal descendants," the term would have to be defined differently for purposes of...