Opinion
No. 106,046.
2012-08-10
In the Matter of the ESTATE OF Freddie W. TRENT, Deceased. Troy C. Fuller, Appellant, v. Richard M. Hammett, as Executor Under will of Freddie W. Trent, Deceased; and as Trustee of a Certain Restated trust of Freddie W. Trent Dated 1/13/03; Appellee, and Nichole S. Trent, Intervenor/Appellee.
Appeal from Johnson District Court; Lawrence E. Sheppard, Judge. Robert G. Scott, of Robert G. Scott, LLC, of Olathe, and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant. Curtis L. Tideman and Mark A. Samsel, of Lathrop & Gage LLP, of Overland Park, for intervenor/appellee.
Appeal from Johnson District Court; Lawrence E. Sheppard, Judge.
Robert G. Scott, of Robert G. Scott, LLC, of Olathe, and Douglas M. Greenwald, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellant. Curtis L. Tideman and Mark A. Samsel, of Lathrop & Gage LLP, of Overland Park, for intervenor/appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
Freddie W. Trent died testate on January 26, 2010. After Trent's will was filed for probate, Troy C. Fuller filed a petition asking the district court to declare that he had a father-child relationship with Trent and that he be declared a beneficiary under Trent's trust and will. Nicole S. Trent, Trent's daughter, was allowed to intervene in Fuller's action. The proceedings on the will and Fuller's case were consolidated. Fuller filed a petition for summary judgment, which was denied. The district court found that Fuller is Trent's biological son but concluded that he is not a beneficiary of Trent's trust or will. The district court entered summary judgment in favor of Nicole. Fuller appealed. We affirm in part and remand in part with instructions.
Trent's will contained a pour-over provision, instructing that all of the property and assets of his estate be transferred to the trust. Pursuant to the provisions of Trent's will, Richard M. Hammett petitioned the Johnson County District Court for probate of Trent's will and to appoint him as executor of Trent's estate. The petition listed Hammett and Trent's daughter, Nicole S. Trent, as named beneficiaries under Trent's will. The petition also identified Nicole as an heir of Trent and stated that, other than Nicole, Trent had no spouse, child, adopted child, or issue of a deceased biological or adopted child. The probate court heard Hammett's petition and ordered that Trent's will be admitted to probate and appointed Hammett as executor of Trent's estate.
Subsequent to the filing of the petition for probate of Trent's will and appointing Hammett as executor but before the hearing on that petition, Troy C. Fuller contacted Hammett and told Hammett that he was Trent's biological son. Thereafter, Fuller filed a parentage action, seeking to have the district court find that he was a biological son of Trent. Fuller moved to consolidate his parentage action with the probate proceedings for Trent's will. The probate court granted Fuller's motion to consolidate.
After the court granted the motion to consolidate, Fuller filed his first amended petition requesting a declaration that he shared a father-child relationship with Trent. In count 2 of the petition, Fuller requested that the court construe the terms and provisions of the trust and find that he is a beneficiary of the trust. Nicole subsequently moved to intervene in the consolidated cases, and the court granted her motion. Nicole then filed her first amended answer requesting that the court find that no father-child relationship exists between Trent and Fuller or, alternatively, order that Fuller undergo DNA testing to establish parentage and find that Fuller is not a beneficiary under Trent's will or trust.
Freddie W. Trent's trust was executed in March 1989. He executed the first Restated Trust in October 1992, and on February 13, 2003, Trent executed a second Restated Trust (Trust), which is the subject matter of this litigation.
Trent was the grantor, trustee, and primary beneficiary of the Trust. Section I(C)(3) of the Trust provides that the purposes of the Trust “are to provide for the management of Grantor's property during Grantor's lifetime and at Grantor's death to reduce taxes and transfer costs of Grantor's property, and provide for the management of the property and its orderly disposition to the proper persons at the proper times.”
Under Section III of the Trust, the Trustee is directed to distribute specific property to designated beneficiaries and then to “distribute all remaining tangible personal property to Grantor's surviving issue per stirpes.” Section III also provides that the remainder of the Trust shall be distributed to the children's generation skipping transfer (GST) Trusts and the children's non-GST Trusts.
Section IV(A) of the Trust governs the allocation of assets to the children's non-GST Trusts:
“Any proceeds flowing to the Children's Non–GST Trusts shall pass to the surviving issue per stirpes of Grantor (determined at the time of the addition of the property) in separate trusts. Each separate trust shall be known as the ‘Child's Non–GST Trust for name of the beneficiary for whom the separate trust is established.’ Currently Grantor's only child is Nicole Suzanne Trent of Godfrey, Illinois.”
Section V(A) of the Trust governs the allocation of assets to the children's GST Trusts:
“Any proceeds flowing to the Children's GST Trusts shall pass to the surviving issue per stirpes of Grantor (determined at the time of the addition of the property) in separate trusts. Each separate trust shall be known as the ‘Child's GST Trust for name of the beneficiary for whom the separate trust is established.’ Currently Grantor's only child is Nicole Suzanne Trent of Godfrey, Illinois.”
Section V(D) of the Trust provides that the trustee “may distribute income and principal for the reasonable health, support, maintenance and education for the child of Grantor for whom this separate Trust was established.” Finally, in discussing the distribution of trust income and principal to support the grantor's child's issue, the Trust provides:
“It is Grantor's primary intent to provide for Grantor's child. Distributions to or on behalf of the issue shall be made by Trustee only after giving due consideration of Grantor's child's standard of living and estimated future financial requirements. If such needs can be met, then distributions may be made under the stated standards.”
Following discovery, Fuller petitioned the district court for summary judgment on his two claims and included the following uncontroverted facts:
“1. Freddie Trent had a son—Andrew on May 11, 1967. ( [Attachment] )
“2. On March 12, 1968 Andrew was adopted by Dwight and Carlyn Fuller. ( [Attachments] )
“3. Andrew's name was changed to Troy Christopher. ( [Attachments] )
“14. Troy Christopher Fuller, Plaintiff herein, a/k/a Andrew Trent is the son of Freddie Trent. ( [Attachments] )”
To support his claim that he was the adopted out son of Trent, Fuller included the following documents with his petition for summary judgment: (1) A copy of the Judgment of Adoption from the Superior Court of the State of California for the County of San Diego authorizing the legal adoption of Troy Christopher Fuller, a/k/a Andrew Trent, by Dwight and Carlyn Fuller; (2) a signed copy of the relinquishment order, showing that Trent relinquished custody of his minor son, Andrew Trent, to the San Diego Department of Public Welfare; and (3) a sworn affidavit of Fuller, attesting to the fact that he was adopted by Dwight and Carlyn Fuller, that he had not changed his name since his adoption, and that he spoke to Trent over the telephone in 1998 and told Trent that he was Trent's son.
Nicole filed a response to Fuller's petition for summary judgment and cross-petitioned for summary judgment. Nicole contested many of the uncontroverted facts listed by Fuller in his petition for summary judgment, including uncontroverted facts 1–3 and uncontroverted fact 14. Nicole asserted that these facts were in dispute because there was a genuine issue as to Fuller's identity and it was uncertain whether Fuller was the same person identified in the records provided by Fuller or whether he was a natural-born child of Trent. To support her assertions, Nicole cited to her brief supporting her cross-petition for summary judgment. In her brief, Nicole argued that the documents provided by Fuller do not conclusively show that he was the individual named in those documents and that those documents gave rise to a “weak presumption” that Fuller was the individual named therein. Nicole also cited to specific language in the Trust as further factual support that Fuller is not a natural-born child of Trent. Specifically, Nicole pointed out that in every version of the Trust, Trent mentioned that Nicole is his only child.
After holding a hearing on the petitions for summary judgment, the district court entered summary judgment in favor of Nicole and denied Fuller's petition for summary judgment. In denying Fuller's petition for summary judgment and entering summary judgment in favor of Nicole, the district court made the following findings: (1) that count 1 of Fuller's petition, the parentage claim, and count 2 of the petition, the request that the court construe the Trust to find that Fuller was a beneficiary, were in substance a plea for construction of the Trust to include Fuller as a beneficiary; (2) that Nicole's responses to Fuller's uncontroverted facts 1 and 14 were argumentative, conclusory, and without evidentiary foundation and that Nicole failed to present substantive contradictory evidence to rebut Fuller's evidence establishing that he is a natural-born child of Trent; (3) that Fuller was, in fact, a natural-born child of Trent; (4) that Fuller's right to a share of Trent's assets was governed by Trent's will and not by the law of intestacy; and (5) that the language of the Trust document indicated that Trent intended for Nicole and her issue to be the sole beneficiaries of the Trust.
In response to the district court's order, Fuller filed a motion to reconsider or to alter or amend the judgment. In his motion, Fuller requested that the district court enter summary judgment in his favor on count 1 of his petition, in light of the court's finding that Fuller is a natural-born child of Trent. As to count 2, Fuller requested that the district court revisit its findings and find that Fuller, as a natural-born child of Trent, is entitled to a share of the Trust's assets. The district court denied Fuller's motion to reconsider or to alter or amend the judgment. Fuller timely filed his notice of appeal.
Fuller's Parentage Claim
When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, a party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
Fuller asserts that the district court erred by not entering summary judgment on his parentage claim. In his petition for summary judgment, Fuller offered several uncontroverted facts to establish that he was a natural-born child of Trent. Nicole challenged Fuller's uncontroverted facts, claiming that there was a genuine issue as to whether Fuller was the same individual referred to in the documents he provided. Fuller contends that Nicole's “responses to the statement of facts of Plaintiff relevant to the paternity issue were inadequate as a matter of law to raise a genuine issue of material fact.” Fuller's contention has merit.
In responding to a party's summary judgment motion, Supreme Court Rule 141(b) (2011 Kan. Ct. R. Annot. 232) requires the party opposing the summary judgment motion to file a memorandum or brief stating whether each factual assertion of the movant is controverted and, if so, setting forth a concise summary of conflicting testimony or evidence and any additional genuine issues of material fact which preclude summary judgment.
The district court found that Nicole's responses to Fuller's uncontroverted facts 1 and 14 were “argumentative, conclusory, and without evidentiary foundation” and that Nicole “failed to come forward with substantive contradictory evidence to rebut [Fuller's] evidence of paternity.” Based upon Nicole's failure to properly controvert the material uncontroverted facts which established that Fuller is a natural-born child of Trent, the district court found that Fuller is Trent's child. Despite this finding, however, the district court denied Fuller's petition for summary judgment. The district court concluded that Fuller's petition, which included both a parentage claim and a claim seeking a declaration that Fuller is a beneficiary of Trent's Trust, was “in reality a plea for the construction of the Trust to include Fuller as a beneficiary.”
At this point, Nicole had the option to admit to a portion or all of Fuller's uncontroverted facts or to controvert a portion or all of these facts. If Nicole controverted any of Fuller's facts, then she was required to specify which facts were controverted and to provide a concise summary of conflicting testimony or evidence that supported her contentions. The district court correctly found that Nicole failed to do this. For instance, Nicole offered the following response to Fuller's uncontroverted fact 1:
“1. Controverted. Intervenor admits that the document offered by Plaintiff reflects that an individual identified as ‘Fred Wayne Trent, aka Fred Wayne DeLong’ relinquished and surrendered for adoption a minor child named Andrew Trent. However, a genuine issue exists as to the identity of Plaintiff, including whether he is the person identified in the record and whether he is a natural-born child of Decedent. (See Int. Cross–Pet. Summ. J., pp. 25–26, pt. V .B.1.a, for further analysis of this point.)”
Similarly, Nicole offered the following response to Fuller's uncontroverted fact 14:
“14. Controverted. A genuine issue exists as to the identity of Plaintiff, including whether he is the person identified in the records submitted by Plaintiff and whether he is a natural-born child of Decedent. (See Int. Cross–Pet. Summ. J., pp. 25–26, pt. V .B.1.a, for further analysis of this point.)”
The section of Nicole's trial brief that was cited in these two responses to Fuller's uncontroverted facts was equally as vague. In her trial brief, Nicole asserted that Fuller's documents do not show that he is the same person who is mentioned in those documents. Nicole also argued that identity is generally a jury question and that Fuller's documents were not sufficient to take that question from the jury and treat it as a question of law. Finally, in her trial brief, Nicole argued that Fuller's status as a natural-born child of Trent was a disputed material fact because in all three versions of the Trust document, Trent proclaimed that Nicole is his only child.
On appeal, Nicole raises the same arguments that she raised in her trial brief. Nicole acknowledges that “a reasonable person might possibly conclude from the evidence that Fuller is [Trent's] biological child who was given up for adoption in 1967,” but Nicole claims that this fact does not entitle Fuller to judgment as a matter of law “because a reasonable person could also infer from the evidence that Fuller is not [Trent's] child.” Nicole also continues to assert that Trent's declaration in every Trust document that Nicole is his only child constitutes conflicting evidence which creates a genuine issue of material fact as to whether Fuller is Trent's biological son.
Nicole's assertion that Fuller's documentation failed to show that he was the person identified in those documents did not comply with the requirements of Supreme Court Rule 141(b). See Connor v. Occidental Fire & Cas. Co., 281 Kan. 875, 882, 135 P.3d 1230 (2006) (concluding that insurer's general statements disputing relevance of evidence cited in insured's summary judgment motion did not comply with Rule 141(b)); Hammig v. Ford, 246 Kan. 70, 75, 785 P.2d 977 (1990) (concluding that plaintiff's response challenging the credibility of a witness cited in the defendant's summary judgment motion did not comply with Rule 141(b)).
Furthermore, Nicole's argument that the Trust's language undermines Fuller's claim to be Trent's biological son is also problematic. Nicole correctly points out that in all three versions of the Trust, Trent declared that Nicole is his only child. However, this fact does not disprove that Fuller is the individual referred to in the documents that he provided. Moreover, the language in the Trust declaring that Nicole is Trent's only child is more appropriately understood as language defining the beneficiaries of the Trust. Therefore, this language should not be interpreted as a declaration by Trent that he had only one child.
The district court correctly concluded that Nicole failed to controvert Fuller's uncontroverted facts 1 and 14. With those facts being deemed admitted, the district court also correctly found that Fuller was a natural-born child of Trent. At that point, the district court should have concluded that Fuller was entitled to summary judgment on count 1 of his petition. We therefore reverse and remand the case to the district court with instructions to grant partial summary judgment to Fuller on the issue of Fuller's parentage.
Trust Beneficiary
The interpretation of a document creating a trust is a question of law over which an appellate court exercises unlimited review. Godley v. Valley View State Bank, 277 Kan. 736, 741, 89 P.3d 595 (2004).
Even though the question of whether Fuller is a beneficiary of the Trust is the central issue in this litigation, Fuller raises three separate issues. First, Fuller argues that the district court erred in concluding that an “adopted-out” child (a child adopted by nonparents) can inherit from his or her biological parent only when the parent dies intestate. Second, Fuller argues that the district court erred in finding that he was not a beneficiary of the Trust because the Trust document provides that the Trust's assets shall be distributed to Trent's issue. Third, Fuller argues that even if he is not a beneficiary under the clear language of the Trust, the Trust is nonetheless ambiguous and Fuller should be declared a beneficiary because the term “issue” includes “adopted-out” children.
From the outset, it should be noted that Fuller's claim that he is a beneficiary of the Trust is entirely dependent on a favorable resolution of the first issue raised in this appeal. Fuller does not contend that Trent specifically named Fuller as a beneficiary of the Trust; rather, Fuller's argument is based entirely upon repeated references in the Trust document directing the Trustee to distribute the Trust assets to the surviving issue of the grantor. Fuller also cites language indicating that one purpose of the Trust is to provide for the disposition of the Trust property to the “proper persons” upon the grantor's death as further evidence that Trent intended for the Trust to have multiple beneficiaries. Accordingly, as we have determined that Fuller is a natural-born child of Trent, then he may have a claim that he is a beneficiary of the Trust. However, in order to succeed on his claim that he is a beneficiary of the Trust, Fuller must demonstrate that Trent intended to include him as a Trust beneficiary.
Fuller argues that the district court erred in finding that an “adopted-out” child can inherit from a biological parent only when that parent dies intestate. Fuller mischaracterizes the district court's decision.
In its memorandum order, the district court recognized that Kansas law preserves the right of an adopted child to inherit from his or her birth parent. See K.S.A. 59–2118(b) (“An adoption shall not terminate the right of the child to inherit from or through the birth parent.”). However, the district court concluded that the word “inherit” was “a term indigenous to intestate probate proceedings” and, therefore, this statute allows an adopted child to inherit from a biological parent when that parent dies without a will. The district court further noted that Fuller's intestate rights were “irrelevant” because Trent died testate and any claim that Fuller might have to a share of the assets of Trent's estate would be controlled by Trent's will. Thus, contrary to Fuller's assertion, the district court did not conclude that an adopted child can inherit from his or her biological parent only when that parent dies intestate. Rather, the district court acknowledged that any claim that Fuller might have to a share of Trent's assets was controlled by the provisions of Trent's will and Trent's Trust, not the law of intestacy.
Fuller cites In re Estate of Van Der Veen, 262 Kan. 211, 935 P.2d 1042 (1997), for the proposition that “adopted-out children, depending on the language in the testamentary instruments of their biological parents or grandparents, can take from and inherit in the estate of such biological parent or grandparent.” However, In re Estate of Van Der Veen does not support Fuller's claim that he is entitled to share in Trent's Trust assets.
In In re Estate of Van Der Veen, Morris and Deanne Van Der Veen had two children, Kent and Laura. Kent, who had previously fathered a daughter and given her up for adoption, murdered his two parents. At the time of the murder, Morris and Deanne had a joint will, which provided that upon the death of the surviving spouse, the remainder of the property should be distributed to Kent and Laura equally and per stirpes. Under Kansas' slayer statute, Kent was prohibited from taking his share of his parents' estate. Thus, our Supreme Court had to resolve whether the Van Der Veens' entire estate passed to Laura or whether the Van Der Veens' grandchild who had been adopted could take Kent's share of the estate. Our Supreme Court first determined that in a situation in which a slayer child's heir or heirs are completely innocent, Kansas' slayer statute operates in a manner that treats the slayer child as having predeceased the victim or victims. In re Estate of Van Der Veen, 262 Kan. at 221.
The court then went on to hold that Kent's daughter was entitled to receive his share of the Van Der Veens' estate, and in doing so, the court noted two significant considerations. First, the court noted that the Van Der Veens intended that each child receive one-half of their estate, and there was no language in the will indicating that the Van Der Veens wanted Laura to receive their entire estate. By implication, the court inferred that it was reasonable to conclude that the Van Der Veens did not intend to disqualify their innocent grandchild from receiving Kent's share of the estate. In re Estate of Van Der Veen, 262 Kan. at 222. Second, the court declined to speculate as to the Van Der Veens' testamentary intentions towards their unknown grandchild because there was insufficient factual support in the record upon which the court could rely in order to arrive at a conclusion on this question. In re Estate of Van Der Veen, 262 Kan. at 222.
In this case, Fuller's claim to a share of the Trust's assets is controlled by the language of the Trust. Because Trent had a provision in his will transferring all of the assets of his estate to the Trust, any claim that Fuller might have to the Trust's assets would be governed by the provisions of the Trust. In order for Fuller to prove that he is a beneficiary of the Trust, he must prove that Trent intended to include him as a beneficiary under the Trust.
Fuller asserts that he is a beneficiary because the Trust uses plural language when speaking of the Trust's beneficiaries. Fuller focuses on language in the Trust indicating that assets from the Trust are to be distributed to the grantor's surviving issue.
“The primary function of a court in interpreting a trust is to ascertain the settlor's or testator's intent as derived from the four corners of the document, and, once ascertained, the intent will be executed unless contrary to law or public policy.” In re Estate of Oswald, 45 Kan.App.2d 106, 112, 244 P.3d 698 (2010), rev. denied 292 Kan. 967 (2011). If the words used in the trust document clearly express the settlor's intent, then there is no need to resort to canons of construction, and a court will enforce the express terms and provisions of the trust as drafted. In re Estate of Oswald, 45 Kan.App.2d at 112.
Fuller first argues that Trent clearly envisioned him as a beneficiary of the Trust because the Trust expressly states that one of the purposes of the Trust is to “provide for the management of the property and its orderly disposition to the proper persons at the proper times” upon Trent's death. (Emphasis added.) Fuller points out that the two previous versions of the Trust did not contain this language, and he also points out that this additional language was added to the Trust approximately 5 years after Fuller contacted Trent and told Trent that he was the son that Trent had given up for adoption. Fuller maintains that the inclusion of this language in the 2003 version of the Trust document was significant because it illustrates that Trent intended that the Trust have multiple beneficiaries, and Fuller submits that he is one of those beneficiaries. Fuller's argument is unpersuasive for two reasons.
First, the Trust does, in certain places, use plural nouns to refer to beneficiaries. As noted above, Section 1(C)(3) of the Trust document provides that one of the purposes of the Trust is to provide for the orderly disposition of assets to the “proper persons.” Moreover, sections IV and V of the Trust document repeatedly refer to “children's” non-GST and GST Trusts. However, the Trust document also repeatedly employs singular words when referring to the beneficiary or beneficiaries of the Trust. For example, in Sections IV and V of the Trust document, the document also repeatedly uses the word “child.” The use of the word child is especially significant in Section V(E)(1)(a), which explains that “[i]t is Grantor's primary intent to provide for Grantor's child.” Therefore, reliance on the use of plural language in the Trust document is not definitive proof that Trent intended for the Trust to have multiple beneficiaries.
Second, Fuller's argument is unpersuasive because the definitional section of the Trust document undercuts his argument that the use of plural language is evidence that Trent intended for the Trust to have multiple beneficiaries. Section X(C)(3) of the Trust document provides: “The masculine gender shall be deemed, where appropriate, to include the feminine or neuter, and the singular the plural and vice versa.” Thus, under the rules of construction outlined in the Trust, the use of plural language does not prove that Trent intended for the Trust to have multiple beneficiaries. Any use of plural language, such as the words persons or children, could be intended to refer to the singular form of those words.
Fuller also argues that he is a beneficiary of the Trust because the Trust states that tangible personal property shall be distributed to Trent's surviving issue per stirpes. To further support his argument that he is a Trust beneficiary, Fuller directs the panel's attention to language in Sections IV(A) and V(A) of the Trust, which provide that assets flowing to the children's trusts shall pass to the surviving issue per stirpes of grantor. Fuller argues that a common-sense reading and application of this language leads to the conclusion that he is a beneficiary of the Trust because he is Trent's biological son and, thus, his surviving issue.
Nicole disputes Fuller's reading of the Trust because, she claims, it does not consider the language surrounding the portions of the document relied upon by Fuller to support his claim. Nicole contends that the use of the specific restrictive language, “[c]urrently Grantor's only child is Nicole Suzanne Trent of Godfrey, Illinois” in Sections IV(A) and V(A) of the Trust, qualifies and limits the preceding references to the grantor's surviving issue. Nicole argues that “[t]he natural conclusion from such circumscribing language is that [Trent] intended that the class of Grantor's only child' would qualify and replace the term ‘issue,’ as used throughout the instrument.” To support her argument, Nicole invites the panel to adopt the reasoning of the Washington Court of Appeals in Old Nat'l Bank v. Campbell, 1 Wash.App. 773, 777–79, 463 P.2d 656 (1970) (holding that use of the word issue in a trust document did not include all lineal descendants because the use of the words children and grandchildren was circumscribing language that limited the meaning of issue).
Our Supreme Court has defined the term issue as “lineal heirs, offspring or progeny and when used in a will it is not ... construed to mean adopted children or statutory heirs.” Poertner v. Burkdoll, 201 Kan. 41, 43, 439 P.2d 393 (1968) (citing other Kansas cases). When used in a testamentary instrument, the word issue is to be given its plain and ordinary legal meaning unless there is some indication in the instrument that the drafter intended for that word to be given a different meaning. Poertner, 201 Kan. at 43.
Fuller's reliance on the use of the word issue in the Trust to support his claim that he is a Trust beneficiary does not control because Sections IV(A) and V(A) of the Trust document contain language that limits the meaning of the word issue. Section IV(A) provides:
“Any proceeds flowing to the Children's Non–GST Trusts shall pass to the surviving issue per stirpes of Grantor (determined at the time of the addition of the property) in separate trusts. Each separate trust shall be known as the ‘Child's Non–GST Trust for name of the beneficiary for whom the separate trust is established.’ Currently Grantor's only child is Nicole Suzanne Trent of Godfrey, Illinois.”
The text of Section V(A) is identical to the text of Section IV(A), with the minor exception that Section V(A) refers to GST Trusts.
A logical and straightforward reading of Sections IV(A) and V(A) of the Trust leads to the inescapable conclusion that Trent intended to give the word “issue” a narrow and more limited meaning. Furthermore, Fuller's argument requires an interpretation of the Trust that narrowly focuses on the phrase “surviving issue per stirpes of Grantor” to the exclusion of other Trust language. In doing so, he ignores the rule that a court should give effect to every word and clause in a testamentary document and, if possible, harmonize all of the provisions in order to effectuate the testator's actual intent. In re Estate of Miller, 186 Kan. 87, 91–92, 348 P.2d 1033 (1960). In this case, we conclude that the Trust language identifying Nicole as Trent's only child indicates that Trent was specifying that Nicole and her descendants were to be the sole beneficiaries of the Trust.
Fuller also argues that he is a beneficiary of the Trust because the Trust document contains no express language of disinheritance and because there is a presumption against disinheritance in the absence of unfriendly relations between a testator and a descendant. He cites Baldwin v. Hambleton, 196 Kan. 353, 357, 411 P.2d 626 (1966), in which our Supreme Court stated:
“ ‘... When a testator intends to disinherit those who would take under the statutes of descent he must indicate that intention clearly by plain words, express devise to others, or necessary implication. By ‘necessary’ implication is meant one which results from so strong a probability as to the testator's meaning that an intent contrary to that imputed cannot be supposed. The presumption against disinheritance is recognized especially in the absence of unfriendly relations existing between the testator and his decedents [descendants]. [Citations omitted.]' “
There are two flaws in Fuller's argument. First, the presumption against disinheritance in the absence of unfriendly relations does not apply in this case because there was virtually no relationship between Trent and Fuller. Trent relinquished Fuller for adoption shortly after Fuller was born, and other than this initial birth relationship, the only purported contact between Trent and Fuller was one phone call from Fuller to Trent in 1998.
Second, the language of the Trust does appear to disinherit Fuller by implication because Trent specified that Nicole is his only child. The language specifying that Nicole is Trent's only child is present in all three versions of the Trust. If, as of 1998, Trent was aware of the fact that his “adopted-out” son was still alive, then the fact that Trent did not change the language in the 2003 Trust identifying Nicole as his only child is important. The absence of any language naming Fuller as a child indicates that Trent maintained his desire to have Nicole and her descendants be the sole beneficiaries of the Trust.
Finally, Fuller cites Jameson v. Best, 124 Kan. 633, 261 P. 582 (1927), for the proposition that “[i]f a Will is capable of a construction disinheriting a descendant and one allowing inheritance the law favors that interpretation which conforms to the federal laws of inheritance.” However, Jameson does not stand for the proposition for which it is cited. Although the court stated that the law favors the construction of a will which conforms to the general laws of inheritance, the court went on to note that when “ ‘a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other permit such issue to participate in a remainder limited upon a life estate given to the ancestor, the latter construction is to be adopted.’ “ Jameson, 124 Kan. at 636–37. This rule has no application to this case because this case does not involve the inheritance rights of the issue of a deceased child.
In sum, Fuller is not a beneficiary of the Trust. Sections IV(A) and V(A) of the Trust expressly declare that Nicole is Trent's only child. This language modifies and limits the preceding references to Trent's surviving issue in those same sections. Therefore, the logical and straightforward reading of those sections leads to the conclusion that Trent intended for Nicole and her descendants to be the sole beneficiaries of the Trust.
Alternatively, Fuller argues that if he is not a beneficiary under the express language of the Trust, then the Trust is ambiguous because language stating that Trust assets should be distributed to Trent's issue is not equivalent to saying that the Trust assets should go only to Nicole and her children. Fuller contends that the district court failed to resolve this ambiguity by not placing itself in the position of the settler at the time the settler executed the Trust and by not considering all of the language employed in the Trust.
In Godley, our Supreme Court stated that when a court is called upon to interpret a trust instrument, a court “ ‘must put itself in the situation of the trustor when the trustor made the trust instrument and, from consideration of the language used in the entire instrument determine the intention of the trustor.’ “ Godley, 277 Kan. at 741 (quoting In re Estate of Pickrell, 248 Kan. 247, 255, 806 P.2d 1007 [1991] ).
The district court found that the Trust was “clear in its terms and declarations” and that there was no need to resort to rules of construction to discern Trent's intention. Therefore, the district court did not place itself in Trent's position at the time of the execution of the Trust. However, even if we were to find the Trust language is ambiguous, Fuller's beneficiary claim would still fail.
Trent executed the Trust document in 2003. Fuller submits that at that point in time, Trent knew that Fuller was alive and was claiming to be his son because in 1998, Fuller called Trent to inform him that Fuller was his son. However, in the 2003 version of the Trust document, Trent continued to maintain that Nicole was his only child.
Finally, the rule of construction that specific language or phrases should control over general language or phrases also leads to the conclusion that Fuller is not a beneficiary of the Trust. More precisely, this rule of construction states that in instances of textual ambiguity “where there is uncertainty between the general and the specific provisions relating to the same thing, the specific provisions ordinarily qualify the meaning of the general provisions, the reasonable inference being that the specific provisions express more exactly what the parties intended.” Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363–64, 552 P.2d 917 (1976). Applying that rule to the Trust document, the specific language—currently grantor's only child is Nicole Suzanne Trent—controls over the general language—surviving issue per stirpes—and leads to the reasonable inference that Trent intended for Nicole and her descendants to be the beneficiaries of the Trust.
Fuller cites several cases from other jurisdictions to support his argument that the word issue includes “adopted-out” children. However, those cases are not controlling precedent. See Critchfleld Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 311, 263 P.3d 767 (2011). Moreover, the cases Fuller cites are not helpful in resolving the issue presented in this case because the courts in those cases were required to interpret language in testamentary instruments that differs from the language used in the Trust document in this case. See Lockwood v. Adamson, 409 Mass. 325, 331–35, 566 N.E.2d 96 (1991) (holding that trust language authorizing disposition of property to the beneficiary or, alternatively, to the beneficiary's issue included the beneficiary's adopted-out son); In re Wolf, 98 N.J.Super. 89, 94–99, 236 A.2d 166 (1967) (holding that adopted-out grandchild was a beneficiary under a will that provided for the distribution of assets to the issue of any predeceased children); Matter of Tracy, 464 Pa. 300, 305–06, 346 A.2d 750 (1947) (holding that language specifying that trust income was to be paid to the issue of child beneficiary included adopted-out child of one beneficiary).
Fuller has not demonstrated that Trent intended for him to be a beneficiary of the Trust. We affirm the district court's finding that Fuller is not a beneficiary of the Trust but reverse in part and remand the case to the district court with instructions to enter a partial summary judgment in favor of Fuller on his parentage claim.
Affirmed in part, reversed in part, and remanded with instructions.