Makoff v. Makoff , 1974 Utah LEXIS 634 ( 1974 )

ELLETT, Justice:

This is an appeal from an adverse ruling of the trial court in granting a summary judgment in favor of the defendants and denying one to the plaintiffs. There is no disputed issue of fact, and since there is merely an issue of law, we need not accord any favored position to the trial court.

On December 10, 1956, one Samuel E, Makoff, Sr., now deceased, created an inter vivos trust by and between himself and his two sons as trustees for the benefit of “the then living issue of each of the following named sons of the Settlor, .” to wit: Richard P. Makoff and Samuel E. Makoff, Jr. The plaintiffs are the present trustees of the trust. The defendants Richard David Makoff, John Harvey Makoff, and Robert Evan Makoff are the natural children of Richard P. Makoff by his first wife, and John Gibbs Makoff is the natural son by a prior marriage of Sidney G. Makoff, the present wife of Richard P. Makoff. The problem arises because Richard has legally adopted John Gibbs Makoff.

The parties wish to know whether an adopted child is included within the term “issue” as used in the Indenture of Trust, the pertinent provisions of which are:

3.1 Upon the death of the Settlor, the Trustees shall continue to hold the Trust Estate subject to the following trust uses and purposes:

(a)The entire net income of the Trust Estate shall be divided each year into equal shares as follows: One share fo'r the then living issue of each of the following named sons of the Settlor, which shares the Trustees shall distribute to such issue upon the principle of representation:

Richard P. Makoff

Samuel E. Makoff, Jr.

(b) Upon the death of the survivor of the above-named sons of the Settlor, the Trustees shall divide the Trust Estate into equal shares as follows: One share for the then living issue of each deceased above-named son of the Settlor, which shares the Trustees shall distribute in accordance with section 3.1(c).

(c) Each share set aside for the issue of a deceased son shall be distributed to such issue upon the principle of representation. .

Specifically, we are required to determine if John Gibbs Makoff, the adopted child of Richard P. Makoff, is entitled to a share in the trust as being the issue of his adopting father.

At the time the trust instrument was made, Richard was living with his first wife and their natural children.

The general rules of construction of written instruments apply to the construction of trust instruments, and those rules require a determination of the intention of the settlor where the creation of the trust is a unilateral matter.¹ However, in case the trust is based on a written instrument, the intention of the settlor must be ascertained from the language thereof, and the court may not go outside of the language in an effort to give effect to what it thinks the intent was. If the language is unambiguous, there is no need for wondering what the true intent may have been, and parol evidence is inadmissible to vary the terms set out.² However, in ascertaining the intention of the settlor we may consider the entire instrument aided by the surrounding circumstances existing at the time of creation of the trust.³

At the time of the creation of the trust neither of the sons of Samuel E. Makoff, Sr., had been divorced, and there was nothing- to bring to the attention of the settlor that there might be adopted children brought into either of the families. The use of the word “issue” as being the class which he wished to benefit should be given its then natural meaning.⁴

The definition given in 57 Am.Jur., Wills, § 1378 is as follows:

The term “issue,” according to the almost universal consensus of opinion, includes descendants of every degree and is to be given that meaning in the absence of explanatory context. It may, however, receive from the context in which it is used, read in the light of such extrinsic circumstances as are proper to be considered, the restricted meanings of “children,” “grandchildren,” “grandchildren whose parents are deceased,” and “heirs of the body.”

Re Farmers’ Loan & Trust Company⁵ is similar to the instant matter. There the meaning of the work “issue” was involved. The court said:

The rule is that, unless some other meaning is given to it by the context, the word “issue” is not confined to children, but includes descendants in any degree. [Citation omitted.] Another meaning will not readily be given if the result would be to divert the gift from the direct line of descent. ...

Some light is thrown on the meaning intended to be given the word “issue” when the settlor provided in section 3.1(c) that the share of the deceased son should be distributed to such issue upon the principle of representation. “Representation” means per stirpes and not per capi-ta, and “per stirpes” means taking or inheriting a share of an estate which the immediate ancestor would have taken had he lived.⁶

In In re Smith’s Estate ⁷ this court held that adopted children could not inherit from the relatives of the adoptive parents.⁸

One thing is clear, and that is this: In the year 1956 when the trust was created, the law was well settled that an adoptive child could not inherit from the parents of its adoptive parents. That was the law as Samuel E. Makoff, Sr., undoubtedly understood it, and that is • the law that must govern the interpretation of the trust before us now.

The law of inheritance was amended by Chapter 189, Laws of Utah 1971, to provide that in various sections “children shall include adopted children.” These amendments have no bearing on the matter before us, for we must ascertain what Samuel E. Makoff, Sr., meant by the word “issue” when he used it in the trust deed on December 10, 1956. We agree with the trial court that he did not intend to include adopted children as beneficiaries of his largess.

The trial court is affirmed, and costs are awarded to the respondents.

CALLISTER, C. J., and HENRIOD and TUCKETT, JJ., concur.

1 . 54 Am.Jur., Trusts, § 17.

2 . Ibid.

3 . Dumaine v. Dumaine, 301 Mass. 214, 16 N.E.2d 625 (1938), 118 A.L.R. 834.

4 . 54 Am.Jur., Trusts, § 18.

5 . 213 N.Y. 168, 107 N.E. 340 (1914), 2 A.L.R. 910, 912.

6 . 2 Blackstone Commentaries 217, 517.

7 . 7 Utah 2d 405, 326 P.2d 400 (1958).

8 . Justice Crockett filed a strong dissent in the case.