2010 Ga. lexis 407 (May 17, 2010

John Buffington died with a will leaving the residue of his estate to separate trusts for each of his living children or the issue of deceased children. Under the will, the term “children” was specifically defined as “only the lawful blood descendants in the first degree of the parent designated.” The introductory portion of the will provided that John had two living children, Beth and Ginger. Beth and Ginger were named as coexecutors under the will and as trustees of the respective residuary trusts for their benefit.  

Following probate of the will, Regina Gordon Todd brought an action seeking a declaration that she was a trust beneficiary as a child by an extramarital affair. Regina claimed that John had acknowledged her as his daughter during his life and that she was entitled to a share of his estate. Beth and Ginger moved for summary judgment on the issue of Regina’s beneficiary status, asserting that the will unambiguously evidenced John’s intent to exclude Regina as a beneficiary. The probate court denied the motion and Beth and Ginger appealed.

On appeal, the Georgia Supreme Court, with one dissenting opinion, reversed on the grounds that: (1) the will unambiguously expressed John’s intent that only Beth and Ginger, the daughters born of his marriage, share as children under the will; (2) John expressly designated his “two living children” as executors and trustees and defined “children” to mean his “lawful blood descendants”; (3) the use of the word “lawful” demonstrated John’s intent that his daughter born out of wedlock not be included as a beneficiary; and (3) John’s lack of steps during his life to legitimize Regina as his child under the law and the use of the word “lawful” reflected an intent to exclude Regina, despite evidence that John acknowledged Regina was his daughter, provided support for her during his life, and even referred to her as “little bastard.”