In Re Maloney Trust

Brickley, J.

(concurring). I concur with the *644majority result, but write separately to express a somewhat different analysis.

I agree that the settlor did not express in her will "a contrary intent” on the question whether adopted children were to be included as beneficiaries. The reference to "born” and "date of birth” are neutral terms in relation to the question whether adoptees were intended to be included.

However, after application of MCL 700.128; MSA 27.5128 to interpret the word "grandchild” to include an adoptee, a literal reading of the remainder of the instrument still excludes the adopted children because they were not "born between the initial division date [February 1, 1975] and the final division date,” even though they were adopted during that period.

A further look at the instrument, however, discloses an ambiguity, if the words "born” and "at birth” are read literally. Paragraph 7 of the trust states "[i]f no grandchild[ren] . . . [are] born before the final division date” then the trust shall be allocated to other beneficiaries. Under this section the adopted grandchildren, having obviously been born before the final disposition date, would have been included in that definition of grandchildren, given the application of § 128 of the statute.

On the other hand, under paragraph 5 of the trust, the adopted children having been born before February 1, 1975, would have been excluded in that paragraph’s definition.

The fact that the use of "born” in paragraph 5 excludes these adopted grandchildren, even after the application of § 128, and the use of "born” in paragraph 7 included those same adopted grandchildren not only creates an ambiguity within the instrument itself, but makes it clear that the words "born” and "at birth” were intended to fix the date at which a grandchild becomes a grand*645child rather than to have the date of birth become determinative as to eligibility.

To give a literal reading to "born” and "at birth” under paragraph 5 of the trust, thereby excluding these adopted children because they were born before February 1, 1975, would bring about a result unintended by the use of these words.

When an ambiguity presents itself within the instrument, it is our responsibility to interpret it in a way most consonant with the overall intention of the settlor. In re Butterñeld Estate, 405 Mich 702, 711; 275 NW2d 262 (1979).

We can best effectuate the legislatively presumed intention of the settlor to include adoptees under the word "grandchild” by reading "born” and "at birth” to be equivalent to "adopted” and "at adoption.”

I therefore concur in the result of the majority.

Levin, J., concurred with Brickley, J.