Garcia v. Clark , 300 Or. App. 463 ( 2019 )

463
Argued and submitted September 20, 2018, affirmed November 14, 2019
In the Matter of the Estate of
Leatha Elizabeth Todd, Deceased.
Sandra GARCIA
and Debra Rhymes,
Appellants,
v.
Sheila Rose CLARK,
Respondent.
Josephine County Circuit Court
17PB04071; A165888
455 P3d 560
The personal representative of testator’s estate petitioned the probate court
for instructions on whether the children entitled to inherit the testator’s estate
included testator’s stepchildren. The stepchildren argue that the term “my chil-
dren” in the will is ambiguous because it is capable of more than one reasonable
construction. The probate court concluded that the will unambiguously excluded
the stepchildren from the definition of “my children.” Held: The probate court did
not err. Testator’s will unambiguously excluded the stepchildren, because the
will identified testator’s children by name, referred to the stepchildren as testa-
tor’s husband’s children from a previous marriage, and stated that testator had
no children from her marriage to the stepchildren’s father.
Affirmed.
En Banc
Pat Wolke, Judge.
Brendan T. Davis argued the cause for appellants. Also
on the brief was Brendan Davis Attorney at Law LLC.
No appearance for respondent Sheila Rose Clark.
Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,
Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, and
Mooney, Judges, and Hadlock, Judge pro tempore.
ARMSTRONG, J.
Affirmed.
Egan, C. J., dissenting.
464 Garcia v. Clark
ARMSTRONG, J.
Leatha Todd died testate in April 2017, leaving
her estate to her children. The personal representative of
her estate, Sheila Clark, petitioned the probate court for
instructions on whether the children entitled to inherit
the testator’s estate included the testator’s stepchildren,
Sandra Garcia and Debra Rhymes. The probate court con-
cluded that the testator’s will unambiguously provides that
the stepchildren are not included among the children who
are entitled to inherit the testator’s estate, and it entered
a limited judgment to that effect. The stepchildren appeal
the judgment, arguing that the will is ambiguous about
whether they are included among the children entitled to
inherit under the will and, hence, that the probate court
erred in concluding otherwise. We disagree and affirm.
The facts underlying this case are undisputed.
Leatha Todd died testate in April 2017. As relevant, her will
provides:
“SECOND: I am married to KEITH S. TODD and all
references in this Will to ‘my husband’ are to him. I have no
children from this marriage.
“I was previously married and have three (3) children
now living, whose names and dates of birth are:
“ROCKY LARAY SCOTT, * * *
“SHEILA ROSE CLARK, * * *
“JAMES DARRELL MCGARRAH, * * *
“My husband was previously married and has two (2)
children now living whose names and dates of birth are:
“SANDRA [GARCIA], * * *
“DEBRA [RHYMES], * * *
“I have no deceased children who died leaving issue.
“All references in this Will to ‘my children’ or any similar
term shall refer not only to my children named above but
also to any child or children hereafter born to or adopted by
me.
“* * * * *
“SIXTH: Further, in the event that my husband,
KEITH S. TODD, should predecease me * * *, then I give,
Cite as 300 Or App 463 (2019) 465
devise and bequeath all the rest, residue and remainder of
my Estate * * * to my children. However, in the event that
my children should predecease me then to the issue of my
said children who shall be living at my death, to share and
share alike, by right of representation. In the event that my
children should predecease me and have no issue then sur-
viving, then I give one half of my Estate to my then heirs at
law and one half of my Estate to my husband’s heirs at law.”
Because the testator’s husband predeceased her, the
testator’s estate is to pass to her children under section six
of her will. In June 2017, the personal representative of the
testator’s estate filed a petition in the probate court under
ORS 114.275 seeking instructions on the construction of
the will.1 Specifically, the personal representative sought
instructions on whether the stepchildren are among the tes-
tator’s children identified in section two of the will as chil-
dren to whom the estate is to be distributed.
At a hearing on the petition, the attorney for the
personal representative did not make an argument on the
construction of the will, stating that
“I don’t believe my client should argue one way or the other.
Her position is to benefit all of the devisees and beneficia-
ries, so she felt it was her job to submit the issue to the
court.”
The stepchildren argued, in turn, that the will is ambiguous
on whether they are included among the testator’s children
who are entitled to inherit under the will. They also submit-
ted extrinsic evidence that they contended the court should
consider on the testator’s intent if the court concluded that
the will was ambiguous on that point.2 The probate court
took the matter under advisement and subsequently issued
1
ORS 114.275 provides, as relevant, that
“a personal representative or any interested person may apply to the court for
authority, approval or instructions on any matter concerning the administra-
tion, settlement or distribution of the estate, and the court, without hearing
or upon such hearing as it may prescribe, shall instruct the personal repre-
sentative or rule on the matter as may be appropriate.”
2
The stepchildren did not argue to the probate court that the extrinsic evi-
dence that they submitted had any bearing on the question whether the will
was ambiguous. They argued only that, if the will were ambiguous, the evidence
would bear on the intent of the testator, that is, it would bear on the resolution of
the ambiguity.
466 Garcia v. Clark
a letter opinion in which it concluded that the will unambig-
uously provides that the references to “my children” in the
will do not apply to the stepchildren. Accordingly, it entered
a limited judgment excluding the stepchildren from the
distribution of the testator’s estate, which the stepchildren
appealed.
The stepchildren reprise on appeal their argument
that the will is ambiguous on whether the term “my chil-
dren” in the will encompasses them. They contend that the
probate court erred in concluding otherwise, and they ask
us to remand the case to the probate court for it to consider
extrinsic evidence to determine the testator’s intent regard-
ing the distribution of her estate. No one other than the step-
children has submitted a brief or argument to us on appeal.
In construing a will, the “intention of a testator, as
expressed in [the] will, is * * * the controlling factor.” Kidder
v. Olsen, 176 Or App 457, 463, 31 P3d 1139 (2001) (citation
and internal quotation marks omitted; ellipsis in origi-
nal); see also ORS 112.227 (“The intention of a testator as
expressed in the will of the testator controls the legal effect
of the dispositions of the testator.”). Generally, “a will speaks
for itself,” and a court may not “resort to extrinsic evidence
* * * to ascertain a testator’s intent.” LaGrand v. LaGrand,
47 Or App 81, 84, 613 P2d 1091, rev den, 290 Or 211 (1980).
However, extrinsic evidence may be used “to explain an
ambiguity, intrinsic or extrinsic.” ORS 41.740; see, e.g., First
Interstate Bank v. Young, 121 Or App 1, 7, 853 P2d 1324,
rev den, 318 Or 25 (1993). Whether a term in a legal instru-
ment is ambiguous is a legal question. See, e.g., Yogman v.
Parrott, 325 Or 358, 361, 937 P2d 1019 (1997).
Stepchildren contend that the meaning of the term
“my children” in the will is ambiguous because the term
is capable of more than one reasonable construction. See,
e.g., King v. King, 295 Or App 176, 185, 434 P3d 502 (2018),
rev den, 364 Or 849 (2019) (“ ‘An ambiguity is presented only
when the language of the agreement is reasonably capable
of more than one plausible interpretation’ ” (quoting Samuel
v. King, 186 Or App 684, 692, 64 P3d 1206, rev den, 335 Or
443 (2003)).). Stepchildren principally focus their argument
on the last paragraph of section two, which states that
Cite as 300 Or App 463 (2019) 467
“[a]ll references in this Will to ‘my children’ or any similar
term shall refer not only to my children named above but
also to any child or children hereafter born to or adopted
by me.”
They first argue that, because they are named in the will
above that paragraph in section two, “it is reasonable to con-
clude that they were meant to be included in the definition
of ‘my children.’ ” In other words, because the testator can
be understood to be the stepchildren’s parent as a result of
her marriage to their father, the reference to “my children”
in that paragraph can be understood to include the step-
children, who are named in section two of the will above
that paragraph. They further argue that the inclusion of
references to them in section two suggests that they were
intended to be devisees along with the other people identi-
fied in that section who are devisees, specifically the testa-
tor’s children from her first marriage.
The problem with that argument is that the other
provisions of section two foreclose an understanding of the
term “my children” in the last paragraph of section two as
including the stepchildren. As quoted above, section two
begins by identifying the stepchildren’s father, Keith Todd,
as the testator’s husband. It then states that the testator
has “no children from this marriage.” (Emphasis added.) It
follows with the statement that the testator “was previously
married and [has] three (3) children now living” (emphasis
added), who are identified by name. It goes on to provide
that the testator’s “husband was previously married and
has two (2) children now living” (emphasis added), who also
are identified by name. In light of those provisions, partic-
ularly the statement that the testator has no children from
her marriage to Keith Todd, the reference to “my children,”
that is, to the testator’s children, cannot plausibly include
the stepchildren, who are identified in the will to be Keith
Todd’s children (and not the testator’s, who are identified
and named separately) and who, if they were the testator’s
children for purposes of the will, would be her children
because of her marriage to Keith Todd.
The stepchildren make several other arguments
in support of their contention that the term “my children”
468 Garcia v. Clark
can be understood to encompass them. They assert that the
inclusion of a provision defining “my children” to include
the testator’s later-born or -adopted children indicates that
the testator did not intend to limit the distribution of her
estate to her children from her first marriage. The inclusion
of that provision implies nothing about whether the testator
intended the term “my children” to include the stepchildren.
They also assert that the provision in section six
that provides that the testator’s estate is to be divided
equally between her heirs at law and her husband’s heirs at
law if her children and their children predecease her sup-
ports an inference that the testator intended “my children”
to include the stepchildren. They argue, in other words, that
the decision to include the testator’s husband’s heirs as ben-
eficiaries if the testator’s children and their children prede-
cease her implies an intention to treat the stepchildren as
the testator’s children in the will. In light of the provisions
of section two that we have earlier discussed, we are not per-
suaded that the treatment of the husband’s heirs in section
six makes it plausible that the testator intended the term
“my children” to include the stepchildren.
Finally, the stepchildren argue that language in
section four of the will can be understood to suggest that the
testator and her husband executed reciprocal wills, mak-
ing it appropriate to consider whether their wills reflected
a joint plan on the treatment of their respective children.
Although the husband’s will is in the record, the stepchil-
dren make no effort to explain how the provisions of the two
wills support their argument, so we decline to consider it.
In sum, the term “my children” in the testator’s will
cannot reasonably be construed to encompass the testator’s
stepchildren. Hence, the probate court did not err in enter-
ing a limited judgment that excluded the stepchildren from
the distribution of the testator’s estate.
Affirmed.
EGAN, C. J., dissenting.
I disagree with the majority’s conclusion that testa-
tor’s will is unambiguous. While I do agree that the majority’s
Cite as 300 Or App 463 (2019) 469
analysis provides one reasonable interpretation of the term
“my children” as used in the will, I disagree with the major-
ity because it fails to consider an equally reasonable inter-
pretation of the will. In my view, the presence of an equally
reasonable interpretation in a will is the definition of ambig-
uousness. See King v. King, 295 Or App 176, 185, 434 P3d
502 (2018), rev den, 364 Or 849 (2019) (An ambiguity exists
when the language of a will is “reasonably capable of more
than one plausible interpretation.”).
Stepchildren argue, in essence, that while testator
uses the term “children” to distinguish between the children
from her first marriage and the stepchildren, she does not
make any distinction between those two subsets of people in
the definition of “my children” in the last full paragraph of
section two of the will. In other words, testator’s definition
of “my children” is so vague that it might have included only
the children from her first marriage, or it might very well
have been intended to include the stepchildren. This argu-
ment is substantiated with language in section two of the
will.
In section two, testator acknowledges that she was
previously married. In order to provide clarity, with regard
to the class of people who could possibly claim to be her hus-
band after her passing, she explicitly limits the definition
of “my husband” to one, and only one, individual—Keith S.
Todd.
In contrast, testator acknowledges that there are a
variety of people who could claim to be her children, but is
less explicit in identifying that class of people. She identifies
and categorizes several narrow groups of people who could
make such a claim: her children from her first marriage,
her stepchildren, and those children adopted or born to her
after the execution of the will. Then, when devising her
estate in section six, rather than using one of the narrow
categories of people previously identified, she uses a general
term—“my children.” The last paragraph in section two,
which attempts to define that general term, makes clear
that the general class of “my children” includes the narrow
category of children adopted or born to her after the execu-
tion of the will. However, it leaves those who arrived before
470 Garcia v. Clark
the execution of the will (i.e., children from the first mar-
riage and stepchildren) in ambiguous limbo.
Furthermore, the majority fails to acknowledge sev-
eral other factors that open the will to more than one rea-
sonable interpretation. For example, in the last paragraph
of section two, the testator noted that the general class of
“my children” also included individuals or classes of people
defined with “any similar term.” The paragraphs describing
both her issue and the issue from her husband’s previous
marriage did not definitively include or exclude them from
the class of “my children,” but they did both use the term
“children.” Because the term “children” is similar to “my
children,” the will left open the possibility that the stepchil-
dren were also included. In addition, section seven of the
will provided that “[i]t is my desire to intentionally omit all
others of my heirs, issue and other persons.” Stepchildren
are mentioned explicitly only once in the will—in section
two where they are named.1 Common sense dictates that a
testator would not explicitly name individuals in a will and
simultaneously omit those individuals from any devises in
the same document, especially when the will included a pro-
vision, such as section seven, which unambiguously stated
the testator’s desire to omit all unnamed individuals from
any bequest under the will. Thus, while the majority unques-
tionably provides one reasonable interpretation of the will, it
by no means provides the only reasonable interpretation.
For those reasons, I would conclude that testator’s
use of the term “my children” is ambiguous and reverse the
probate court’s determination.
Therefore, I respectfully dissent.
Powers and James, JJ., join in the dissent.
1
Likewise, the children from testator’s first marriage are not explicitly
named in regard to any devises. As a collective, they are only explicitly men-
tioned once in the will—again, section two where they are named. McGarrah and
Clark are referenced one additional time in section eight, which names them as
co-executors in the event that Keith Todd did not survive testator.