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In re Estate of Todd

Court of Appeals of Oregon

November 14, 2019

In the Matter of the Estate of Leatha Elizabeth Todd, Deceased.
v.
Sheila Rose CLARK, Respondent. Sandra GARCIA and Debra Rhymes, Appellants,

          Argued and Submitted September 20, 2018.

          Josephine County Circuit Court 17PB04071 Pat Wolke, Judge.

          Brendan T. Davis argued the cause for appellants. Also on the brief was Brendan Davis Attorney at Law LLC.

          No appearance for respondent Sheila Rose Clark.

          Before Egan, Chief Judge, and Armstrong, Ortega, D eVo r e, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, and Mooney, Judges, and Hadlock, Judge pro tempore.

         Case Summary: The personal representative of testator's estate petitioned the probate court for instructions on whether the children entitled to inherit the testator's estate included testator's stepchildren. The stepchildren argue that the term "my children" in the will is ambiguous because it is capable of more than one reasonable construction. The probate court concluded that the will unambiguously excluded the stepchildren from the definition of "my children." Held: The probate court did not err. Testator's will unambiguously excluded the stepchildren, because the will identified testator's children by name, referred to the stepchildren as testator's husband's children from a previous marriage, and stated that testator had no children from her marriage to the stepchildren's father.

         En Banc

         [300 Or.App. 464] ARMSTRONG, J.

         Leatha Todd died testate in April 2017, leaving her estate to her children. The personal representative of her estate, Sheila Clark, petitioned the probate court for instructions on whether the children entitled to inherit the testator's estate included the testator's stepchildren, Sandra Garcia and Debra Rhymes. The probate court concluded that the testator's will unambiguously provides that the stepchildren are not included among the children who are entitled to inherit the testator's estate, and it entered a limited judgment to that effect. The stepchildren appeal the judgment, arguing that the will is ambiguous about whether they are included among the children entitled to inherit under the will and, hence, that the probate court erred in concluding otherwise. We disagree and affirm.

         The facts underlying this case are undisputed. Leatha Todd died testate in April 2017. As relevant, her will provides:

"SECOND: I am married to KEITH S. TODD and all references in this Will to 'my husband' are to him. I have no children from this marriage.
"I was previously married and have three (3) children now living, whose names and dates of birth are:
"ROCKY LARAY SCOTT, * * *
"SHEILAROSE CLARK, ***
"JAMES DARRELL MCGARRAH, ...

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