O'DONOGHUE v. DOOLEY

WINCHESTER, J.

¶ 1 The primary issue on appeal is whether the per stirpes gift of any remaining Trust principal left to two of Settlor’s grandchildren, who have died without lineal descendants, may ultimately be distributed to the widow of one of the grandchildren. We hold that the Trust principal remainder interest was intended for lineal descendants of the two grandchildren, and not to the grandchild’s widow.

BACKGROUND

¶ 2 David L. Dooley (the Settlor) created the David L. Dooley Trust (Trust) on September 12, 2003, appointing himself as the initial trustee for his own benefit. The Settlor also established a pour-over will in which the Trust was the sole beneficiary. This same date, the Settlor married the Appellee, Carolyn Ann Collins, his partner of over thirteen years. The Settlor died a little over one month later on October 20, 2003, with all four of his children having predeceased him. The Settlor named two of his five grandchildren, Erin and David O’Donoghue, as successor trustees.

¶ 3 Pursuant to Article 5.02 of the Trust, because the Settlor was survived by his spouse, Appellee, the Trust was split into two parts, Part A and Part B.1 Part A was named the “David L. Dooley Trust” and Part B was referred to as the “Carolyn Ann Collins Dooley Trust,” named for the Settlor’s spouse, Appellee herein. Pursuant to Article 5.02, Part A of the Trust was to “consist of an amount of property equal to the largest amount that can pass free of federal estate tax” and be distributed in accordance with the provisions of Article 5.04 of the Trust.

¶ 4 Article 5.04 of the Trust devised five gifts to each of the Settlor’s five grandchildren. Two of the gifts were $1000.00 each to Susan and Janet Haggard. David Haggard’s gift was $50,000. The Trust required each of these three gifts to lapse if the recipient predeceased the Settlor, which did not happen and the gifts have been disbursed. The remaining two gifts distributed “the balance of Part A, outright and free of trust, to the Settlor’s grandchildren, Erin O’Donoghue and David O’Donoghue, per stirpes.” According to the record herein, Erin and David each were paid $474,000.00 as their share of the Part A gifts. After the distributions were made to the grandchildren, Part A of the Trust appears to be complete.

¶ 5 Part B of the Trust consists of all remaining property not previously distributed under Part A. Article 5.05 provides for the distribution of the net income and principal of the Trust as follows, in pertinent part:

a. Income. Commencing as of the date of the death of the Settlor and throughout the lifetime of the Settlor’s spouse, the Trastee shall distribute the net income of this Trust, in convenient installments, but not less frequently than annually.
b. Non-Productive Property. The Set-tlor’s spouse may at any time, by written notice, require the Trustee either to make any nonproductive property of the Trust productive or to convert such nonproductive property to productive property within a reasonable time.
c. Death of Settlor’s Spouse. On the death of the Settlor’s spouse, all income accrued or received by the Tres-*775tee, but not distributed prior to the date of death of the Settlor’s spouse, shall be paid to the estate of the Set-tlor’s spouse, and all principal then remaining in this Trust shall be distributed to the Settlor’s granddaughter, Erin O’Donoghue, and the Settlor’s grandson, David O’Donoghue, per stirpes, and this Trust shall terminate.

¶ 6 It is undisputed that both Erin and David O’Donoghue died leaving no lineal descendants. Erin survived Settlor, but died testate on May 13, 2010, leaving David O’Do-noghue as the sole beneficiary of Erin O’Do-noghue’s estate. David also survived Settlor, but died testate on December 21, 2013. Appellant, Sandra O’Donoghue, David’s widow, is the sole beneficiary of David O’Donoghue’s estate and is currently serving as personal representative of that estate. After the deaths of Erin and David, Appellee sought and obtained appointments as Trustee of the Trust.2

¶7 Appellant commenced the instant action, seeking construction of the provisions of the Trust and an accounting. Appellant argues that Erin and David are beneficiaries of Trust principal under the Trust and that she, as the sole beneficiary of the estate of David O’Donoghue, is entitled to Erin and David’s distribution of the Trust’s principal upon Ap-pellee’s death. '

¶ 8 Appellee filed a motion to dismiss on the grounds that all distributions required by Article 5.04 had been made and that the per stirpes bequests to Erin and David under Article 5.05 were contingent upon Appellee’s death before them. Appellee contends that the gifts to Erin and David lapsed upon their deaths without lineal descendants to satisfy a per stirpes distribution. The trial court denied the motion to dismiss and Appellee later filed a motion for summary judgment on the same grounds.

¶ 9 Appellant asserted a cross-motion for summary judgment claiming that Appellee was only entitled to income from Part B principal and that the interests of Erin and David to the principal vested at the time of Settlor’s death and should fall to her as the sole beneficiary of David O’Donoghue’s estate. Alternatively, Appellant stated that if the gifts to Erin and David had lapsed, the trust principal should be distributed in the probate of Settlor’s estate under the laws of intestate succession.

¶ 10 On September 16, 2014, the trial court awarded summary judgment to Appellee, and denied Appellant’s cross-motion. The trial court ruled that the distribution date for the remaining principal of Part B was intended to be the date of death of Settlor’s spouse, which has yet to occur. Consequently, the tidal court found that Appellant had no claim to any proceeds of the Trust. ¶⅞⅜ trial court denied Appellant’s motion to modify and Appellant appealed.

¶ 11 The Court of Civil Appeals, Division III, reversed the trial court, and held that the gifts of Trust principal to Erin and David vested upon Settlor’s death and that the vested remainder interest passed generally to the heirs of Erin and David upon their deaths before Appellee or, more specifically, to Appellant, David’s widow. Appellee petitioned for certiorari which this Court previously granted.

DISCUSSION

¶ 12 In construing the terms of a trust, the intention of the settlor of the trust should control. In re Dimick’s Will, 1975 OK 10, ¶ 10, 531 P.2d 1027, 1030. In cases where a testamentary document is capable of two interpretations, one which would avoid intestacy and one that would not, the former interpretation should prevail. Matter of Tayrien’s Estate, 1980 OK 8, ¶ 11, 609 P.2d 752, 755; Hulett v. First Nat. Bank and Trust Co. in Clinton, 1998 OK 21, ¶ 22, 956 P.2d 879, 885.

¶ 13 Here, the Settlor expressly intended for his wife, Appellee, to have the Trust income for life and for his grandchildren, Erin and David, to take any remaining Trust corpus, per stirpes. The gift to Erin and David is a remainder interest, intended to be disbursed per stirpes.

*776¶ 14 Appellee argues that Erin and David’s interests in the remainder never vested because Appellee is still alive and, upon their deaths, neither Erin nor David left -a lineal descendant. As such, Appellee maintains that the contingent gifts lapsed and that all remaining interests in the Trust’s assets flowed to her under Article 5.10 of the Trust.3

¶ 15 Appellant claims that because Erin and David were alive at the time of Settlor’s death their remainder interests became fully vested and could not lapse. Appellant urges that when Erin and David died, their interests passed to their respective estates, and that she is the ultimate taker of the interests.

¶ 16 The Court of Civil Appeals agreed with Appellant and found that Erin and David’s “heirs” should receive their “shares as representatives of their deceased ancestor.” We would agree with this decision if Erin and David had left lineal descendants as required by the Trust term “per stirpes,” but they did not. David was not an ancestor of Appellant. The Court of Civil Appeals’ opinion erroneously disregards the meaning of the term “per stirpes” and, instead, allows for a right of representation by heirs in general, without regard to the lineage of the taker.

¶ 17 The Latin term “per stirpes” means “by roots or stocks” and is a method of dividing an estate where the gift is “[p]ro-portionately divided between beneficiaries according to their deceased ancestor’s share.” Black’s Law Dictionary (10th Ed. 2014). The term comes from the Latin word “stirps” which references a “branch of a family” or “a line of descent.” Black’s Law Dictionary (10th Ed. 2014). The phrase “lineal descendant” is defined to mean “[a] blood relative in the direct line of descent. Children, grandchildren, and great-grandchildren are lineal descendants. Black’s Law Dictionary, (10th Ed. 2014). Spouses are neither blood relatives nor lineal descendants of each other.

¶ 18 Appellee argues that the Settlor intended the Trust principal to go to her, as his widow, rather than the widow of his grandson. In support, Appellee points to Trust Article 5.10 which provides that where the Trust is terminated under certain circumstances, none of which currently exist here, then the remaining assets of the Trust are to flow to the beneficiary then entitled to the Trust’s income, which is currently Appellee. Appellee also points out that the Trust provides for any undistributed income to be disbursed to her estate upon her death. We agree that there is evidence within the four corners of the Settlor’s Trust that he would desire his remaining assets- to be disbursed to Appellee or her estate. Matter of the Estate ofHixon, 1985 OK 18, ¶ 5, 715 P.2d 1087, 1089-1090. See also 84 O.S.2011, § 151 (“A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.”) and 84 O.S.2011, § 152 (“In case of uncertainty, arising upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.”).

¶ 19 Where a trust specifically makes the distribution of a bequest per stirpes, we find that the spouse of a devisee is not a lineal descendant of the devisee and is ineligible to take under a “per stirpes” method of distribution. Because Erin and David died leaving no lineal descendants, their interests lapsed and the Trust principal shall pass, pursuant to the Trust, to the beneficiary of *777the Trust income. -Accordingly, the trial court’s decision is affirmed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED.

CONCUR: COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, and TAYLOR, JJ. DISSENT: REIF, C.J., COLBERT and GURICH (by separate writing), JJ.

. The Trust provided:

5.02 Disposition if Settlor’s Spouse Survives Settlor. If the Settlor’s spouse shall survive the Settlor, the Trustee shall divide the balance of the Trust Fund into two (2) separate shares (hereinafter referred to as "Part A” and "Part B") in the following manner:
(a) Part A. Part A shall consist of an amount of property equal to the largest amount that can pass free of federal estate tax ... Part A shall be held, administered and distributed in accordance with the provisions of Article 5.04 hereof.
(b) Part B. Part B (hereinafter referred to as the "Carolyn Ann Collins Dooley Trust”) shall consist of all of the remaining assets of the Trust Fund and shall be held, administered and distributed in accordance with the provisions of Article 5.05 hereof.

. Appellant maintains she did not receive notice of such appointments.

. Article 5.10 of the Trust provides as follows: "Duration of Trust. Notwithstanding any other provision contained in the Agreement, a trust created herein shall terminate -upon the earlier of: (a) the date on which all trust assets have been distributed as provided hereinabove; (b) the date which is twenty-one (21) years after the death of the survivor of any beneficiary in being at the date of the Settlor’s death; or (c) the end of tire latest time permitted by any rule against perpetuities or remote vesting, or any other law, applicable to such trust. Upon termination of any trust created herein pursuant to clause (b) or (c) of the preceding sentence, all remaining assets of such trust shall- be distributed to those persons then entitled to the income from such trust in the proportion that such income is distributable, or if the income is distributable among a class of beneficiaries in the discretion of the Trustee, then equally, to the members of such class, regardless of the age which any distribute otherwise entitled shall have attained.