dissenting. I must respectfully dissent because I cannot accept a rule of law that implies a testator’s intent from legislation that did not exist when the will was executed or at the time of his death.
“The court’s function in construing a will, including its trust provisions, is to determine and apply the testator’s intent as expressed in the language of the whole will, and read in light of the applicable law, and circumstances surrounding the will’s execution.” (Citations omitted.) Central Trust Co. of Northern Ohio, N.A. v. Smith (1990), 50 Ohio St.3d 133, 136, 553 N.E.2d 265, 269. In Smith, supra, this court held that the common-law rule of construction referred to as the “stranger to the adoption” rule was abrogated as to testamentary trusts as of August 28, 1951, the effective date of G.C. 8004-13, 124 Ohio Laws 178, 193 (later codified as R.C. 3107.13; see current R.C. 3107.15 for analogous provisions). G.C. 8004-13 provided that a legally adopted child has the same status and rights as a naturally born child for purposes of inheritance. In Smith, the disputed beneficiary was adopted when he was thirteen years old. Id. at 134, 553 N.E.2d at 268.
I think it obvious that the “stranger to the adoption” rule is not abrogated as to adopted adults just because it is abrogated as to adopted children. In *43Smith, the court reconstructed the testatrix’s intent by presuming that the testatrix was aware of the existence of an applicable statute. This is, perhaps, well and good.
Probate courts commonly examine the statutes that exist on two different dates. First, the existing statutes are relevant to determine the testator’s intent on the date that the will was executed. Second, courts sometimes also consider the statutes in effect as of the date of death, on the assumption that the testator may well have acquiesced to later changes in the law because he did not change his will. G.C. 8004-13 referred to the rights of an adopted child and the analogous statute (R.C. 3107.13, now codified as 3107.15) was not changed to refer to an adopted person until January 1, 1977 (136 Ohio Laws, Part I, 1839, 1851), for the simple reason that an adult could not be adopted in this state until that date. 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.
The majority simply fails to explain how the testator can be presumed to have intended “children ” to include an adopted “adult ” on the basis of a statute that was not enacted until fourteen years after the execution of his will and ten years after his death. The opinion states that “we must also presume that a testator is aware that the laws that affect his estate are subject to change” and then relies on the fact that the testator must have been aware that a minority of other states (Ohio not included) allowed adult adoption at that time. I submit that under this rationale a testamentary trust is subject to every change of law made after the death of the testator. This decision requires a testator to foresee every conceivable change in the law to prevent the legislature from amending his will by statute after his death.
The majority also implies that the testator may have intended to include Rochelle Lieberman as one of his brother’s children because he was aware that his brother had a minor stepchild living with him and may have assumed that the child would eventually be adopted. However, Lieberman was born on May 18, 1941, which means that she was twenty-one years old when the will was executed on February 25, 1963. I would observe that adult adoption was not even permitted in Ohio on that date or on the date of the testator’s death. Under the law that existed at that time, the testator’s brother could never legally adopt Lieberman. For purposes of inheritance, “children” were clearly defined as adopted or natural born children. Given the existing law, the testator must be presumed to have been aware that Lieberman would not and could not share in this trust as written.
For the reasons stated, I cannot join the result or the reasoning promulgated today.