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06/25/76 VIRGINIA ANN WHITFIELD ET AL. v. JOHN R.

June 25, 1976

VIRGINIA ANN WHITFIELD ET AL.
v.
JOHN R. MATTHEWS, JR., ETC



Bloodworth, Justice, wrote the opinion.

Heflin, C.j., and Faulkner, Almon and Embry, JJ., concur.

The opinion of the court was delivered by: Bloodworth

BLOODWORTH, Justice.

This appeal is taken by the guardian ad litem from a judgment construing a provision of an intervivos trust created by L. B. Whitfield, Jr., for the children of his two sons.

The trustee, John R. Matthews, Jr., filed a bill seeking a construction of the trust as to whether Vanda Whitfiled, adopted daughter of L. B. Whitfield, III, falls within the clause "children now or later born to my son L. B. Whitfield, III," as it appears in the trust instrument.

The trial Judge ruled that "Vanda Whitfield is a child of L. B. Whitfield, III, entitled to the benefits of a child born of L. B. Whitfield, III, upon the terms and conditions set out in the trust instrument."

The trust instrument was executed by L. B. Whitfield, Jr., on August 1, 1963. It was divided into two parts. One part made an irrevocable transfer of one half of certain assets in trust "for the benefit of the children now or later born to my son, L. B. Whitfield, III." Basically the trust provides that the trustee pay the income to the beneficiaries. [A like provision was made for the children "hereafter born" to the settlor's other son, Frank G. Whitfield.] Each trust also provided for a "pour-over" into the other trust should the beneficiaries of either trust all die without surviving issue.

L. B. Whitfield, III, had children at the time of the execution of the trust. As Frank G. Whitfield then had no children, the trust provided that its one half of the income would be accumulated until he had children. L. B. Whitfield, III, now has four natural children and the one adopted child, Vanda Whitfield. He is married for the third time. He is divorced from Vanda's mother. Frank G. Whitfield has one child. He is divorced. All the beneficiaries are parties to this litigation. Minors are represented by a guardian ad litem. The trustor is now deceased. Prior to his death he and his son Frank G. Whitfield signed the following instrument consenting for the trustee to treat Vanda Whitfield, the adopted child of L. B. Whitfield, III, the same as if she were born to him, viz:

"We, the undersigned L. B. Whitfield, Jr., trustor in the trust agreement mentioned above, and Frank G. Whitfield, one of the sons of L. B. Whitfield, Jr., do hereby consent for Fred S. Ball, Jr., as trustee, to treat an adopted child of L. B. Whitfield, III, the same as if that child had been born to the said L. B. Whitfield, III, and to make distribution to such adopted child or for said child in the same manner as is provided with reference to distributions for children born to L. B. Whitfield, III.

"Signed this 24th day of July, 1972."

The basic issue on this appeal is whether Vanda Whitfield, the adopted daughter of L. B. Whitfield, III, is a beneficiary under the trust. To resolve that issue we must consider two questions, viz: (1) whether Vanda falls within the class to whom the gift is given - "children now or later born to my son L. B. Whitfield, III"; and, (2) whether any ...


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