I respectfully dissent.
The issue presented is whether the specific terms of the trust agreement at issue indicate an intent to include only natural born grandchildren and thus to exclude adopted grandchildren from the class of beneficiaries.
Pursuant to the trust agreement’s "initial division date” provision, on February 1, 1975, the trust corpus was divided equally into separate trusts for the settlor’s then living grandchildren, and a fund was specifically named for each.1 The funds set aside in the separate trusts for each such *646grandchild are subject to subsequent reallocation, by the terms of the instrument, to provide a share for each grandchild of the settlor born after the initial division date. The "open” provision of the trust agreement is reflected in paragraph five and reads as follows:
If a grandchild or grandchildren of mine shall be born between the initial division date and the final division date, then as of the date of birth of each such grandchild the trustee shall deduct equally from the separate funds . . . sufficient amounts to provide an additional separate fund to be designated by the name of such newly born grandchild equal in value to the average value (after deduction of such amounts) of the funds from which the deductions are made.
The question is whether the trust assets are to be reapportioned for the benefit of the grandchildren adopted by one of the settlor’s sons, on June 25, 1976.
The Revised Probate Code, § 128, provides in part:
In the construction of a trust agreement or will, whether executed on, before, or after June 23, 1966, the term "child”, "grandchild”, "issue”, "heir”, "descendant”, "beneficiary” or other equivalent term shall be construed to include any adopted person and his descendants whether natural or adopted unless a contrary intention appears by the terms of the instrument .... [MCL 700.128; MSA 27.5128.]
It is argued for the appellants (adopted children) that the terms "born” or "birth” in paragraphs three, five, and seven of the trust agreement2 do not indicate an intent to exclude the adopted *647grandchildren, and that these terms are to be treated as "equivalent terms” within the statute. Thus, the statutory rule of construction is applicable, and separate trusts should be established for the appellants pursuant to paragraph five of the trust instrument.
For the appellees (natural children) it is argued that the use of the words "born” and "birth,” is, in and of itself, a manifestation of an intent to include only natural-born children, and that the consistent use of these terms by the settlor in the present case indicates an intention that the trust assets be reapportioned only for the benefit of the settlor’s natural-born grandchildren.
Cases from other jurisdictions that have involved construing similar terms in wills, testamentary, or inter vivos trusts, seem to support the appellees’ position. See Thomas v Trust Co Bank, 247 Ga 693; 279 SE2d 440 (1981) (adopted children of income beneficiary of inter vivos trust did not qualify as remaindermen of trust which provided that remaindermen were "the children born or to be born” of the beneficiary); Whitfield v Matthews, 334 So 2d 876 (Ala, 1976) (adopted child not included as beneficiary in inter vivos trust where trust instrument provided that trust was for benefit of "children now or later born” to trustor’s son); First Natl Bank v Waldron, 406 SW2d 56 (Mo, 1966) (adoptive children excluded where beneficiaries limited to "and their children, born in lawful wedlock”); Knox College v Jones Store Co, 406 SW2d 675 (Mo, 1966) (child adopted by life tenant not included where trust deed provided that it was made for "use and benefit” of life tenant and named natural-born sons of life tenant, which class could be enlarged to include other children as "may be born to” life tenant). See also Wachovia Bank & Trust Co v Andrews, 264 NC *648531; 142 SE2d 182 (1965); Vaughn v Vaughn, 161 Tex 104; 337 SW2d 793 (I960). The only decision brought to our attention reaching a contrary result is In re Trusteeship Under Agreement With Nash, 265 Minn 412; 122 NW2d 104 (1963).3
Nevertheless, it must be noted that every trust is unique. In In re Trusteeship Under Agreement With Nash, supra, 415, the Minnesota Court, in construing the trust agreement in that case, stated:
No case has been called to our attention in which the precise language of this trust has been construed. We have noted that every testator’s circumstances and plan of disposition is unique, that "no will has a brother,” and therefore precedents are of no great value.
While the use of the terms "born” or "birth” may not, in and of itself, indicate an intent to include only natural-born children within an open class of beneficiaries, the decision of the Court of Appeals in the present case, that the use of these terms within the context of the subject trust agreement does indicate such an intent, was not clearly erroneous.
In the trust agreement at issue, the word "born” was used four times and the words "date of birth” were used twice.4 Furthermore, these terms were used in the operative provisions of the trust determining if, when, and how a separate fund is established for a grandchild. To include the adopted grandchildren, paragraph five of the trust *649agreement would have to be interpreted as if it read: If a grandchild or grandchildren of mine shall be born or adopted between the initial division date and the final division date, then as of the date of birth or date of entry of a decree or an order of adoption of each such grandchild, the trustee shall deduct equally from the separate funds named for the other grandchildren of mine then held hereunder sufficient amounts to provide an additional separate fund to be designated by the name of such newly born or adopted grandchild.
The section of the Revised Probate Code relied upon by the appellants is a rule of construction, and it provides in part that the term "grandchild” shall be construed to include adoptees, unless a "contrary intention appears by the terms of the instrument.” MCL 700.128; MSA 27.5128. The purpose of this statutory rule of construction, however, is not to frustrate a testator’s or settlor’s intent, which must be effectuated if it can be ascertained.
The statutory language at issue cannot be interpreted as requiring an express, specific, and unequivocal statement excluding adopted children. The decision of the Court of Appeals so concluding was not clearly erroneous. Thus, I would affirm.
Boyle, J., concurred with Riley, J.The "initial division date” provision is incorporated in paragraph three of the trust agreement:
"February 1, 1975, or the date of birth of the first grandchild of mine born after February 1, 1975, if there is no grandchild of mine living on February 1, 1975, shall be the 'initial division date.’ ”
See ante, pp 637-638, n 6.
The probate judge, in the present case, considered many of the cited cases from other jurisdictions, including In re Trusteeship Under Agreement With Nash, which the court found to be distinguishable.
See ante, pp 637-638, n 6.