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Trusts and Estates Click here for the full text of this decision The will’s terminology indicates intention to include all persons who became “issue” by any legal process, including adoption. FACTS:The appellants, Shannon Emily Parker and Kelli Parker, appeal from the probate court’s denial of their motions for summary judgment and the court’s corresponding ruling granting the appellees’, Christy Lynn Parker and Robert Clinton Parker, motions for partial summary judgment. In three issues, appellants complain that the probate judge was without power to rule upon the parties’ summary judgment motions due to a previous oral recusal and that if the probate judge possessed such power, he erred by denying the appellants’ motions and granting appellees’ motions. HOLDING:Affirmed. The appellants complain that the trial court erred by granting the appellees’ motions for partial summary judgment and denying appellants’ motions for summary judgment. The appellants argue that the language of the Roeser and Pavelic trusts shows an intent to exclude adopted great-grandchildren as beneficiaries. The appellees argue, however, that the trusts clearly show an intent to include them as beneficiaries. In “Codicil No. 1 to Last Will Dated February 19, 1947 of Chas. F. Roeser, ” Roeser created three separate trusts: one for Pavelic, the second for his daughter Emily, and the third for his other daughter Ellen. Roeser created a power of appointment in Pavelic’s trust and stated that if she did not name and appoint those who should gain the balance of the corpus and undistributed income, then the trustee shall pay: “ [O]ne-half (1/2) of the net income of the trust to my daughter, Emily Roeser, if then living, if not, in equal shares, to the children born of her body; the children, and their heirs, of any deceased child of her body to be entitled to their parent’s portionper stirpes; and if there be none such to take and receive the one-half (1/2) share of the net income of the trust, going to Emily Roeser, then her said one-half (1/2) share in said net income shall go and be paid to her sister, Ellen Roeser, if then living, if not, to the children born of her body; the children, and their heirs, of any deceased child of her body to be entitled to their parent’s portion per stirpes. [Emphasis added.] “ The provision creating Ellen’s trust contains identical language as Emily’s trust, but where “Emily” is used, the name “Ellen” is substituted and vice versa. The court’s primary inquiry in interpreting a will is to determine the intent of the testator. If the will itself is unambiguous, courts should not go beyond its specific terms in search of the testator’s intent. The courtapplies the law as it existed at the time the will was executed. In this case, the applicable law was the 1931 adoption statute. The law in effect at the time presumed that adopted children do not take under a will executed by a third person unless the will discloses a contrary intent. The key question is not whether adopted persons have a right to take under the law, but whom the testator intended to share in his estate. If Roeser’s trust discloses an intent contrary to the presumption of the 1931 adoption statute, that intent controls. The court may not “add to, subtract from, amend, correct, reform, revise, or rewrite the will even if the court might think that the testator was unreasonable, unjust or unwise in bequeathing and devising his property as he did.” Here, Roeser specifically stated in Emily’s and Ellen’s trusts that “children born of her body ” were to receive equal shares of the trust. It is well settled that such language is construed to exclude adopted persons from benefiting under a will or trust. The next clause in the trusts states that “the children, and their heirs, of any deceased child of her body [are] entitled to their parent’s portion per stirpes.” Although Roeser created a limitation that only children “of the body” of Emily and Ellen (Roeser’s grandchildren) could receive income and corpus from trusts, this limitation does not extend to their grandchildren (Roeser’s great-grandchildren), as demonstrated by the removal of the “of the body” language in the second clause. Because this language discloses an intent contrary to the presumption of the 1931 adoption statute, it controls. Furthermore, it must be assumed that Roeser knew the presumption under the 1931 statute and the cases construing it, which excluded adopted children unless the will or trust included contrary language. Including the “of the body” language in the first clause, but deleting it from the following clause indicates that Roeser intended to include adopted great-grandchildren. Although appellants argue that it is simply not logical to assume that Roeser would exclude adopted grandchildren but include adopted great-grandchildren, the court cannot redraft wills to add provisions “under the guise of construction ” to reach a presumed intent. Under article four, sec. 3 of Pavelic’s will, Pavelic established a separate trust for the benefit of each grandchild living at her death. She defined “grandchild ” or “ grandchildren ” as “ children born . . . to my two daughters, Emily Roeser Parker and Ellen Roeser Brants.” Upon termination of each trust, the assets would be distributed to the grandchild for whom the trust was created. If a grandchild for whom a trust was created died before termination of the trust and was survived by any descendants, the trust assets would pass to the descendants who were living at the date of termination. In the will, “descendants” and “descendan ” are defined as “ the lawful issue of a deceased person in the line of descent and shall not be construed to include the issue of a parent in the line of descent who is living at the time in question.” In a codicil, Pavelic also established a trust for her husband that would terminate upon his death. Upon termination, the assets of the trust would be distributed according to article four of the will, if the Pavelic trusts still existed. If the Pavelic trusts did not exist, the assets would pass free of trust to Emily, Ellen, and their descendants. According to the codicil, “‘[D]escendants’ as used in this Section shall mean any natural born child or childrenin the line of descent of a deceased parent. ” [Emphasis added.] Pavelic’s will is controlled by the 1951 adoption statute, which stated: “[A] child shall . . . be deemed and held to be for every purpose the child of its parent or parents by adoption as fully as though naturally born to them in lawful wedlock . . . . Such adopted child shall be regarded as a child of the parent or parents by adoption for all other purposes as well, except that where a deed, will, or other instrument uses words clearly intended to exclude children by adoption, such adopted child shall not be included in such class. Thus, the statutory presumption was that adopted children were included as beneficiaries unless words clearly indicated that they were excluded.” Appellants first argue that a testator’s use of language of exclusion in one section of a will is effective as to the entire will. They argue that “descendants,” as defined in article three-A, section three of the codicil, should control the whole document. The codicil states that “‘descendants’ as used in this Section shall mean any natural born child or children in the line of descent of a deceased parent.” Appellants rely on Sharp v. Broadway National Bank, in which the appellants argued that because two will provisions did not specifically exclude adopted children, they were entitled to receive the benefits of the trust. The court upheld the trial court’s decision to exclude adopted children based on the language in another provision of the will, in which the testator expressly stated that he wanted “relatives of the whole blood and/or their issue [to] receive the greatest benefit . . . and not any strangers, or relatives of the half blood, or their issue.” Here, Pavelic’s will does not contain such strong language to show an intent to exclude adopted great-grandchildren. Furthermore, the court believes that Hagaman v. Morgansettles the issue of whether the use of exclusion language in one section of a will is effective as to the entire will. 886 S.W.2d 398 (Tex. App. � Dallas 1994, writ denied). The will dispute in Hagaman centered around two provisions. One provision determined how a life estate would be devised if any of the testatrix’s children predeceased her and specifically discussed an adopted grandchild. The second provision stated, “Upon termination of the life estate of each of my children, I give, devise, and bequeath the remainder thereof to that child’s bodily issue, share and share alike, or their bodily issue in their stead, per stirpes.” Because the testatrix’s four children survived, the provision discussing the adopted grandchild never applied. Although the appellants tried to argue that the testatrix intended to limit the devise to blood relatives because she mentioned the adopted grandchild in one provision and not the other, the court disagreed. The court held that it did not even reach the provision concerning the adopted grandchild because all of the testatrix’s children were living at her death; therefore, the provision never became effective. The provision providing for the life estate to go to her children’s “bodily issue” controlled. Because the court held that terms such as “bodily issue” included adopted children under the 1951 adoption statute, the adopted grandchild was a beneficiary under the will. Here, appellants are also relying on a definition from an article of Pavelic’s will that never became effective. The article applied only if Pavelic’s husband died and his trust, along with the Pavelic trusts, had been terminated. Here, the Pavelic trust did not terminate before his death. Therefore, the trust assets were disposed of under the terms of the Pavelic trust created in article four. Similar to the Hagaman court, this court does not reach the question of whether the article three-A provision controls because it never became effective. Accordingly, it does not construe the definition of “descendants ” as used in that article to apply to the entire will. Although when Pavelic created the separate trusts for her grandchildren she provided a limitation that grandchild or grandchildren means “children born . . . to my two daughters, Emily Roeser Parker and Ellen Roeser Brants,” she did not include this limitation as to those who may take under the trusts if a grandchild was deceased. She simply stated that the property should pass to the living descendants, which are defined as “lawful issue.” By choosing the term “lawful issue,” Pavelic specifically rejected other terms, such as “born ” and “ of the body,” that have commonly been construed to exclude adopted persons. The court concludes that Pavelic’s use of “lawful ” to modify “ issue” indicates her intention to include all persons who became “issue” by any legal process, including adoption. Thus, appellees are beneficiaries under the Pavelic trust. OPINION:Livingston, J; Livingston, Dauphinot, and Gardner, JJ.

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