(concurring in part and dissenting in part).
While I concur in the majority’s holding that the attempted garnishment by the Bank of Newport of John P. McLaughlin’s remainder interest in the trust, in the circumstances existing in this case, is ineffective, I respectfully dissent from the court’s opinion holding that Kelly Marie Dibble shares equally in the distribution of the trust remainder.
It is axiomatic that the obligation of the court is to ascertain the intent of the sett-lor. In re Trust Created by Moulton, 233 Minn. 286, 289, 46 N.W.2d 667, 669 (1951); Northwestern National Bank v. Simons, 308 Minn. 243, 245, 242 N.W.2d 78, 79 (1976). The majority concludes the language of the trust instrument is unambiguous, and, therefore, a court may not resort to extrinsic evidence to ascertain the sett-lor’s intent. It is with that conclusion I disagree. First, when considered in the light of the circumstances that existed at the time the trust was executed and at the time it became irrevocable, it seems clear to me that there exists ambiguity in the instrument itself. Secondly, it seems clear to me that the majority’s decision, rather than giving effect to the settlor’s intent, works to completely frustrate it.
It appears that in arriving at its decision the majority looked only at the trust instrument itself without considering the circumstances and understanding of the settlor at the time of the creation of the trust or at the time it became irrevocable. My understanding of the law is that it is only when “[ajbsent tokens of meaning other than such as the language itself imports, intention must be found exclusively in the [trust] language.” See In re Trust under Will of Holden, 207 Minn. 211, 215, 291 N.W. 104, 107 (1940); First & American National Bank v. Higgins, 208 Minn. 295, 302, 293 N.W. 585, 590 (1940). In this case, I submit, the meaning of the language used by Daniel T. McLaughlin has a meaning controlled “by context and surrounding circumstances”. Id.
From the record furnished us, it appears that Daniel T. McLaughlin disapproved of his son’s marriage to Kelly Marie’s mother, and, indeed, had little to do with Kelly Marie or her mother following the marriage — to the extent he forbade them from coming into his home. The settlor never approved of his son George’s marriage. He refused to grant George, then a minor, his consent to marry. Upon learning of Kelly Marie’s birth, Daniel T. McLaughlin instructed his children that Kathleen and Kelly Marie “were not permitted to step foot in his house.” Following George’s death, Daniel T. McLaughlin learned of Kathleen’s marriage to Thomas Dibble and Thomas Dibble’s adoption of Kelly Marie in 1966. Besides harboring a deep bitterness towards George’s wife and widow, the sett-lor did not consider Kelly Marie to be his grandchild or the natural object of his bounty.
The trust here involved was drafted in 1969 and amended in 1970. From 1951 to 1979 Minn.Stat. § 259.29 (1978) provided in part:
After a decree of adoption is entered the natural parents of an adopted child shall be relieved of all parental responsibilities for the child, and they shall not exercise or have any rights over the adopted child or his property. The child shall not owe his natural parents or their relatives any legal duty nor shall he inherit from his natural parents or kindred, (emphasis added)
This was the law in effect at the time Kelly Marie was adopted by her stepfather; at the time Daniel T. McLaughlin created the trust; and at the time Daniel T. McLaughlin died, rendering the trust irrevocable.
Daniel T. McLaughlin was a lawyer himself, although not actively engaged in the practice of law. Presumably, he knew that under the law, at least from 1952 until the time the trust instrument was drafted, that Kelly Marie, having been adopted out of the family, had no legal claim on his bounty under the inheritance statute. In defining “issue” in the trust instrument, he provided for children adopted into the family but *48made no provision for children adopted out of the family. To me this evidence suggests that settlor never considered Kelly Marie a member of his family, if not before her adoption, then certainly after it. I suggest that when Daniel T. McLaughlin used the words “living issue” in the trust document, he did so with knowledge and reference that Kelly Marie, having been adopted out of the family, would not legally be considered his “living issue”. Therefore, the term as used was ambiguous, and in order to ascertain the true intent of the testator, the court may look to the surrounding circumstances to ascertain the context in which the term was used.
The Restatement (First) of Property, § 265, comment e (1940), also supports this conclusion. Section 265 sets forth the rule of construction that when a limitation is in favor of the “issue” the child continues to be “issue” of its natural parents, unless the process of adoption excludes such child from being able to take by intestate succession from its natural parents. To whatever extent the adoption statute disaffiliates the child from its natural parents by denying such child the power to take from such parents by intestate succession, the child ceases to be “issue” of its natural parents for all purposes.
In this case the trial court never reached the issue of testator’s intent as ascertained by consideration of the surrounding circumstances. While ordinarily the determination of such intent is a question for the fact finder, when the judge hears the case without a jury and decides a fact issue on written evidence alone, as here, an appellate court may make its independent assessment of the evidence. In re Trust Known as Great Northern Iron Ore Properties, 308 Minn. 221, 225-226, 243 N.W.2d 302, 305 (1976), cert. denied, 429 U.S. 1001, 97 S.Ct. 530, 50 L.Ed.2d 612 (1976). In my view, the weight of the evidence indicates clearly that Daniel T. McLaughlin did not intend to include Kelly Marie in the distribution of the trust assets. Accordingly, I would reverse.