Stephenson, J.
It is the fundamental duty of the courts to ascertain the intent of a testator in making a will, including any testamentary trust provisions contained therein, and to give effect to those intentions wherever legally feasible. Tootle v. Tootle (1986), 22 Ohio St.3d 244, 247, 22 OBR 420, 423, 490 N.E.2d 878, 881; Anderson v. Gibson (1927), 116 Ohio St. 684, 157 N.E. 377, at paragraph one of the syllabus; Townsend’s Executors v. Townsend (1874), 25 Ohio St. 477, at paragraph one of the syllabus; see, also, Ohio Citizens Bank v. Mills (1989), 45 Ohio St.3d 153, 155, 543 N.E.2d 1206, 1208 (applying this principle to inter vivos trusts). Generally, the express language of the testamentary provisions themselves will indicate the testator’s intent. Casey v. Gallagher (1967), 11 Ohio St.2d 42, 46, 40 O.O.2d 55, 57, 227 N.E.2d 801, 806; Findley v. Conneaut (1945), 145 Ohio St. 480, 486, 31 O.O. 161, 164, 62 N.E.2d 318, 322; Townsend’s Executors, supra, at paragraph two of the syllabus.
In the testamentary trust provisions at issue herein, the testator provided for distribution of trust assets to the “then living children” of William Solomon, his deceased brother. Clearly, appellant, as a naturally born child of William Solomon, is an intended beneficiary of the trust. However, there is nothing in the express language of the will which indicates whether the testator intended the class of “then living children” of William Solomon to include adopted children as well.
In those instances where the express language does not reveal the testator’s intentions, the courts have turned to various presumptions or rules of construction. See Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (concerning an inter vivos trust). One such presumption is the “stranger to the adoption” rule, which, historically, held that where a testator was a stranger to the adoption of another (e.g., the adoption occurs subsequent to [38]*38the testator’s death), it was presumed that he did not intend for the adopted child to be included within the designated class unless a contrary intent clearly appeared. See, e.g., Third Natl. Bank & Trust Co. v. Davidson (1952), 157 Ohio St. 355, 362, 47 O.O. 257, 260, 105 N.E.2d 573, 577; Albright v. Albright (1927), 116 Ohio St. 668, 680, 157 N.E. 760, 764; see, also, Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (concerning an inter vivos trust).
Recently, however, this court held that the common-law “stranger to the adoption” rule was abrogated as to wills, including trusts established therein, as early as August 28, 1951, when G.C. 8004-13 became effective.1 Central Trust Co. of Northern Ohio, N.A. v. Smith (1990), 50 Ohio St.3d 133, 553 N.E.2d 265, at paragraph two of the syllabus. Thus, this court held as follows in paragraph three of the syllabus:
“Where there is no specific language within the trust provisions of a will prohibiting an adopted child from taking under the trust, a child adopted by the testator’s son after the testator’s death may take under the terms of the instrument as a member of the class designated ‘the children of [my son], whether now living or born hereafter.’ ”
This principle from Smith would appear to be dispositive of the cause sub judice and, there being no specific language in the will prohibiting an adopted child from taking thereunder, would require inclusion of appellee in the class of “then living children” of William Solomon for purpose of inheriting under the trust. Appellant advances several arguments, however, to the effect that Smith is not dispositive because it involved the adoption of a minor child, whereas the cause sub judice involves an adult adoptee and the “stranger to the adoption” rule would have remained in effect with respect to adult adoptees until 1977, fourteen years after the testator executed his will. Thus, appellant urges us to find that the testator intended to exclude appellee from inheriting under the trust because he was a stranger to her later adult adoption. For the following reasons, we disagree.
In 1976, the Ohio General Assembly enacted a new R.C. 3107.02, which provided, in pertinent part, that an adult may be adopted if, among other [39]*39things,2 the adult had established during his minority a child-foster parent or child-stepparent relationship with the adoptor. Former R.C. 3107.02(B)(3), Am.Sub.H.B. No. 156 (136 Ohio Laws, Part I, 1839, 1841). Prior to such time, the law had provided only for the adoption of a child under eighteen years of age. See former R.C. 3107.02, 1953 H.B. No. 1; former R.C. 3107.01, Am.Sub.S.B. No. 1 (135 Ohio Laws, Part I, 7, 19); see, also, Barrett v. Delmore (1944), 143 Ohio St. 203, 28 O.O. 133, 54 N.E.2d 789.3
Appellant is correct that, in construing the words used by a testator, we must presume that the testator was acquainted with these statutes, their judicial interpretation and the effect which they would have on his estate. See Flynn v. Bredbeck (1946), 147 Ohio St. 49, 33 O.O. 243, 68 N.E.2d 75, at paragraph one of the syllabus; see, also, Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (applying this presumption to inter vivos trusts). However, it does not necessarily follow that we must presume the testator herein intended to exclude adult adoptees from inheriting under the trust merely because the law did not allow for such an adoption at that particular time.
Rather, we must also presume that a testator is aware that the laws that affect his estate are subject to change. See Hummel v. Davis (App.1936), 22 Ohio Law Abs. 49, 52; see, also, Smith v. Hunter (1912), 86 Ohio St. 106, 116, 99 N.E. 91, 93.4 Although Ohio law did not allow adult adoptions at the time the testator executed his will, we note that other jurisdictions did allow such adoptions either explicitly by statute or by judicial interpretation of pertinent statutes. See, generally, Annotation (1968), 21 A.L.R.3d 1012, 1017-1021, Section 3; Annotation (1933), 83 A.L.R. 1395, 1396. It would be reasonable for the testator to have presumed that Ohio could, eventually, join the other jurisdictions in allowing such adoptions to occur. A testator who creates a trust that provides for termination at the death of a life beneficiary and distribution of trust assets to the “then living children” of the beneficiary is presumed to know that the legislative definition of children will be determined at the time the class closes and that the definition may include adult adoptees [40]*40even though adult adoptions were not authorized at the time the trust was created.
Moreover, in that appellee had, during her minority, a relationship as the foster child or stepchild of William Solomon,5 it would also be logical to presume the testator was aware that, someday, appellee might be adopted by his brother.
Free access — add to your briefcase to read the full text and ask questions with AI
Stephenson, J.
It is the fundamental duty of the courts to ascertain the intent of a testator in making a will, including any testamentary trust provisions contained therein, and to give effect to those intentions wherever legally feasible. Tootle v. Tootle (1986), 22 Ohio St.3d 244, 247, 22 OBR 420, 423, 490 N.E.2d 878, 881; Anderson v. Gibson (1927), 116 Ohio St. 684, 157 N.E. 377, at paragraph one of the syllabus; Townsend’s Executors v. Townsend (1874), 25 Ohio St. 477, at paragraph one of the syllabus; see, also, Ohio Citizens Bank v. Mills (1989), 45 Ohio St.3d 153, 155, 543 N.E.2d 1206, 1208 (applying this principle to inter vivos trusts). Generally, the express language of the testamentary provisions themselves will indicate the testator’s intent. Casey v. Gallagher (1967), 11 Ohio St.2d 42, 46, 40 O.O.2d 55, 57, 227 N.E.2d 801, 806; Findley v. Conneaut (1945), 145 Ohio St. 480, 486, 31 O.O. 161, 164, 62 N.E.2d 318, 322; Townsend’s Executors, supra, at paragraph two of the syllabus.
In the testamentary trust provisions at issue herein, the testator provided for distribution of trust assets to the “then living children” of William Solomon, his deceased brother. Clearly, appellant, as a naturally born child of William Solomon, is an intended beneficiary of the trust. However, there is nothing in the express language of the will which indicates whether the testator intended the class of “then living children” of William Solomon to include adopted children as well.
In those instances where the express language does not reveal the testator’s intentions, the courts have turned to various presumptions or rules of construction. See Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (concerning an inter vivos trust). One such presumption is the “stranger to the adoption” rule, which, historically, held that where a testator was a stranger to the adoption of another (e.g., the adoption occurs subsequent to [38]*38the testator’s death), it was presumed that he did not intend for the adopted child to be included within the designated class unless a contrary intent clearly appeared. See, e.g., Third Natl. Bank & Trust Co. v. Davidson (1952), 157 Ohio St. 355, 362, 47 O.O. 257, 260, 105 N.E.2d 573, 577; Albright v. Albright (1927), 116 Ohio St. 668, 680, 157 N.E. 760, 764; see, also, Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (concerning an inter vivos trust).
Recently, however, this court held that the common-law “stranger to the adoption” rule was abrogated as to wills, including trusts established therein, as early as August 28, 1951, when G.C. 8004-13 became effective.1 Central Trust Co. of Northern Ohio, N.A. v. Smith (1990), 50 Ohio St.3d 133, 553 N.E.2d 265, at paragraph two of the syllabus. Thus, this court held as follows in paragraph three of the syllabus:
“Where there is no specific language within the trust provisions of a will prohibiting an adopted child from taking under the trust, a child adopted by the testator’s son after the testator’s death may take under the terms of the instrument as a member of the class designated ‘the children of [my son], whether now living or born hereafter.’ ”
This principle from Smith would appear to be dispositive of the cause sub judice and, there being no specific language in the will prohibiting an adopted child from taking thereunder, would require inclusion of appellee in the class of “then living children” of William Solomon for purpose of inheriting under the trust. Appellant advances several arguments, however, to the effect that Smith is not dispositive because it involved the adoption of a minor child, whereas the cause sub judice involves an adult adoptee and the “stranger to the adoption” rule would have remained in effect with respect to adult adoptees until 1977, fourteen years after the testator executed his will. Thus, appellant urges us to find that the testator intended to exclude appellee from inheriting under the trust because he was a stranger to her later adult adoption. For the following reasons, we disagree.
In 1976, the Ohio General Assembly enacted a new R.C. 3107.02, which provided, in pertinent part, that an adult may be adopted if, among other [39]*39things,2 the adult had established during his minority a child-foster parent or child-stepparent relationship with the adoptor. Former R.C. 3107.02(B)(3), Am.Sub.H.B. No. 156 (136 Ohio Laws, Part I, 1839, 1841). Prior to such time, the law had provided only for the adoption of a child under eighteen years of age. See former R.C. 3107.02, 1953 H.B. No. 1; former R.C. 3107.01, Am.Sub.S.B. No. 1 (135 Ohio Laws, Part I, 7, 19); see, also, Barrett v. Delmore (1944), 143 Ohio St. 203, 28 O.O. 133, 54 N.E.2d 789.3
Appellant is correct that, in construing the words used by a testator, we must presume that the testator was acquainted with these statutes, their judicial interpretation and the effect which they would have on his estate. See Flynn v. Bredbeck (1946), 147 Ohio St. 49, 33 O.O. 243, 68 N.E.2d 75, at paragraph one of the syllabus; see, also, Mills, supra, 45 Ohio St.3d at 156, 543 N.E.2d at 1209 (applying this presumption to inter vivos trusts). However, it does not necessarily follow that we must presume the testator herein intended to exclude adult adoptees from inheriting under the trust merely because the law did not allow for such an adoption at that particular time.
Rather, we must also presume that a testator is aware that the laws that affect his estate are subject to change. See Hummel v. Davis (App.1936), 22 Ohio Law Abs. 49, 52; see, also, Smith v. Hunter (1912), 86 Ohio St. 106, 116, 99 N.E. 91, 93.4 Although Ohio law did not allow adult adoptions at the time the testator executed his will, we note that other jurisdictions did allow such adoptions either explicitly by statute or by judicial interpretation of pertinent statutes. See, generally, Annotation (1968), 21 A.L.R.3d 1012, 1017-1021, Section 3; Annotation (1933), 83 A.L.R. 1395, 1396. It would be reasonable for the testator to have presumed that Ohio could, eventually, join the other jurisdictions in allowing such adoptions to occur. A testator who creates a trust that provides for termination at the death of a life beneficiary and distribution of trust assets to the “then living children” of the beneficiary is presumed to know that the legislative definition of children will be determined at the time the class closes and that the definition may include adult adoptees [40]*40even though adult adoptions were not authorized at the time the trust was created.
Moreover, in that appellee had, during her minority, a relationship as the foster child or stepchild of William Solomon,5 it would also be logical to presume the testator was aware that, someday, appellee might be adopted by his brother. In any event, we must also presume that the testator was aware of then existing law which would have allowed William Solomon to adopt any minor and, thereby, bestow upon it the same inheritance rights possessed by a natural child.
Knowing all of this, the testator, nevertheless, made no provision to exclude adopted children from taking under the testamentary trust even though the law permitted him to exclude all those who were not “heirs of the body” of William Solomon. Accordingly, we find no merit to appellant’s argument that the testator intended to bar persons adopted as adults from taking under the trust and we extend the holding in Smith to those instances involving adult adoptees. We hold that an adult who is adopted pursuant to R.C. 3107.-02(B)(3), and thus is a “child” by definition under R.C. 3107.01(A), has the same status and the same rights as a person who is a minor at the time of adoption. Therefore, where there is no specific language in a trust provision of a will prohibiting an adopted child from taking under the trust, a child adopted by a trust beneficiary, after the testator’s death, may take under the terms of the instrument as a member of the class of “then living children” of the beneficiary, even though the adoptee was an adult at the time of his adoption.
A similar result was reached by the Supreme Court of Kansas in Meek v. Ames (1955), 177 Kan. 565, 280 P.2d 957, in which a decedent left a will devising a life estate in land to his daughter subject to a prior life estate in his wife. The will provided that, upon the daughter’s death, the land would become the absolute property of the daughter’s children. At the time the will was executed and, at decedent’s death, Kansas law allowed only for the adoption of children below the age of majority, which, for females, was then eighteen years of age. Three years after his death, the age of majority for females was extended to twenty-one. Some twenty years after that, the daughter adopted a nineteen-year-old girl. On appeal, it was argued that the decedent did not intend to allow the adoption of a nineteen-year-old at the time of his death since, at that time, it was not legally possible to adopt a person of that age. The court rejected this argument and reasoned that the decedent [41]*41was presumed to know that such statutes could be changed and, in any event, he did not limit the devise to the issue of his daughter’s body, but used the general term “children.” Id., 177 Kan. at 570-571, 280 P.2d at 962; see, also, In re Estate of Fortney (1980), 5 Kan.App.2d 14, 18-19, 611 P.2d 599, 603.
Our decision herein is also supported by sound policy. The adoption of an adult who is neither permanently disabled nor mentally retarded can occur only if a child-foster parent or child-stepparent relationship had been established during the minority of the adult to be adopted. R.C. 3107.02(B)(3). Thus, the purpose of this statute appears to be to allow for adoptions which, for one reason or another, were not made during the child’s minority. See In re Adoption of Huitzil (1985), 29 Ohio App.3d 222, 225, 29 OBR 267, 270, 504 N.E.2d 1173, 1176. In cases such as the one before us, a long-established child-stepparent relationship is given the legal sanction of adoption and the adult adoptee is merely placed in the same position that she would have been in had the proceedings been consummated before she reached the age of majority. Thus, we can perceive no reason to discriminate between a person adopted as a minor and a person adopted as an adult for these purposes. If the General Assembly had intended a distinction between the rights of a minor adoptee and an adult adoptee, then presumably appropriate statutory language would have been utilized to reflect such an intention.
On this same basis, we also reject appellant’s argument that appellee’s adoption was a mere subterfuge to gain a portion of the trust and that it should be disallowed or. it will provide an “open invitation to ‘treasure hunts.’ ” In re Estate of Griswold (1976), 140 N.J.Super. 35, 55, 354 A.2d 717, 728. Appellant cites cases from other states that have held that the policy of placing an adopted child on the same level as a natural child will not apply where adults are adopted merely to create an heir or to give an heir an interest in property. It should first be noted that, while these cases are instructive, no court in this state is bound by a decision of another state court applying that state’s own law. See Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 401, 135 N.E. 669, 673; see, also, Shuman v. Schick (1953), 95 Ohio App. 413, 415, 53 O.O. 441, 442, 120 N.E.2d 330, 332.
More important, however, our review of these cases does not reveal any previous child-foster parent or child-stepparent relationship established during the adoptees’ minority. See, e.g., Cross v. Cross (1988), 177 Ill.App.3d 588, 591, 126 Ill.Dec. 801, 803-804, 532 N.E.2d 486, 488-489 (a forty-nine-year-old individual adopts a thirty-six-year-old person and the two had lived together for only seventeen years); In re Estate of Griswold, supra (adoptee was thirty-one years old when the stepparent relationship began); Schaefer v. Merchants Natl. Bank (Iowa 1968), 160 N.W.2d 318, 320 (no apparent [42]*42relationship during minority of adoptee); In re Estate of Comly (1966), 90 N.J.Super. 498, 502-503, 218 A.2d 175, 178 (no mention of child-foster parent or child-stepparent relationship). The factual posture and reasoning in these cases are in accordance with those of other jurisdictions which prohibit adoptions, in unusual circumstances, where it would defeat the intent of the testator. See, e.g., Minary v. Citizens Fidelity Bank & Trust Co. (Ky.App. 1967), 419 S.W.2d 340, 344 (wife adopted by husband).
As stated previously, however, Ohio law allows for an adult adoption only if there was a child-foster parent or child-stepparent relationship established during the minority of the person adopted. Appellee had just such a relationship with William Solomon and, therefore, this case is clearly distinguishable from those cited by appellant.
For these reasons, we are persuaded that the Court of Appeals for Stark County properly reversed the judgment of the probate court. Accordingly, the judgment of the appellate court is affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Douglas, H. Brown and Resnick, JJ., concur.
Wright, J., dissents.
Earl E. Stephenson, J., of the Fourth Appellate District, sitting for Holmes, J.