author: GILBERTSON, Chief Justice.

text:
    2003 SD 34
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Margaret M. MILES, A Protected Person.
    Nos. 22399, 22434.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 13, 2003.
    Decided April 2, 2003.

      Thomas J. Linngren of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, South Dakota, Attorneys for appellant, Koyne L. Miles.
    Paul I. Hinderaker of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, South Dakota, Attorneys for appellee, Guardian and Conservator, Janine A. Cone.
   GILBERTSON, Chief Justice.

[¶ 1.] Koyne Miles (Koyne), trustee of the Miles Trust, appeals the circuit court’s order which approved the guardian’s annual report and the conservator’s annual accounting. Koyne also appeals the circuit court’s approval of the application of fees. Janine Cone (Janine), guardian/conservator, appeals the circuit court’s ruling which found that it lacked jurisdiction over Koyne as trustee of the Trust because the Trust assets are in California. We affirm on Issues 1 through 5 and reverse on issue 6.

FACTS AND PROCEDURE

[¶ 2.] Margaret Miles (Mother) is an 87-year-old widow who lived in California until 1999. She suffers from dementia, along with other health problems. In 1970, she created the Miles Trust, reserving to herself the income and principal for her life. Mother named herself trustee and named two of her three children, Koyne and Janine, as co-successor trustees. When the Trust was created it contained no assets. However, in 1998 the trust was funded with Margaret’s Merrill Lynch accounts in the amount of $119,487.96 and her California real estate, with a value of $430,000. The Trust was also amended to name Koyne as the sole successor trustee.

[¶ 3.] In August of 1999, while Mother was living at Hillcrest Royale, an assisted living facility in California, she contacted Janine and requested that she come to California to help with Mother’s financial affairs. Janine lives near Willow Lake, South Dakota on farmland that Mother deeded her in 1996. Apparently, Mother was upset after an altercation with Koyne and her other son, Willis. When Janine arrived in California, Mother informed her that she no longer wished to live at Hill-crest. At Janine’s suggestion, Mother agreed to take a trip with her and her granddaughter, Jani Driggs, to Jam’s home in Utah.

[¶ 4.] The day after the three women left for Utah, Koyne filed a petition for temporary guardianship in California and insisted that Mother return to California. Janine hired an attorney in Utah to assist in Mother’s representation. The Utah counsel filed a petition in Utah to appoint Janine as Mother’s temporary guardian, to which Koyne filed an objection. Additionally, Janine filed a petition in California in opposition to Koyne’s petition for guardianship and conservatorship. Janine also filed a petition in California to be appointed Mother’s guardian and conservator.

[¶ 5.] The Utah and California courts appointed a court investigator to interview Mother. The court investigator found that although Mother does not have the ability to manage her financial affairs, she had the capacity to designate who she wanted to act on her behalf concerning her care and financial affairs. Furthermore, Mother clearly expressed the intent to have Janine be in charge of her care and financial affairs. Therefore, on September 21, 1999, the Utah Court appointed Janine as temporary guardian.

[¶ 6.] In September of 1999, Janine brought Mother back to South Dakota with her to live with her family on the land that Mother had deeded to her in 1996. On November 29, 1999, Janine filed a petition for guardianship in South Dakota and notified the California court. The California court, in turn, dismissed its case and ordered Koyne to file an accounting of the temporary conservatorship with the South Dakota court. Although Koyne filed a petition with the South Dakota court to be appointed as Mother’s temporary conservator, the court in South Dakota ultimately appointed Janine as Mother’s guardian and conservator.

[¶ 7.] Since August of 1999, Koyne has paid only $500 out of the Trust for Mother’s care. Additionally, Janine discovered that Koyne had transferred approximately $74,000 on August 18, 1999, from Mother’s Merrill Lynch account into his personal account. This account, including Mother’s money, was seized by a creditor. After Janine’s South Dakota counsel wrote Koyne two letters demanding he return the funds to Mother’s Trust account and file the court-ordered conservatorship ordered by the California court, the South Dakota court entered an order authorizing Janine to bring an action in California to obtain an accounting and for the removal of Koyne as trustee. Therefore, Janine filed a petition with the California court. The court ordered Koyne to file an accounting of the Trust and Conservatorship.

[¶ 8.] On March 29, 2001, Janine filed her annual accounting for the year 2000. She included with her request a proposed budget for the year 2001. Koyne filed a “special appearance” in South Dakota to object to the accounting. He sought to appear in his individual capacity, and not as trustee. Janine objected to this, however, the court denied her motion and allowed Koyne to proceed. The trial court granted Janine the majority of the relief she had requested in the accounting and determined that the attorney fees and costs incurred by Janine were reasonable and expended for the benefit of Mother. Specifically, the trial court approved Janine’s request for monthly compensation, medical and personal expenses for mother, and legal feels. Because the trial court found that Mother has needs for funds beyond the income that she receives, the conservator was ordered to make a demand to Koyne, the trustee, for these amounts. However, the trial court ruled that it lacked jurisdiction to order Koyne to make the payments from the trust assets.

[¶ 9.] Koyne appeals the trial court’s decision, raising the following issues for our review:

1. Whether the trial court erred when it found there was no agreement between Janine and Mother regarding the farm income.
2. Whether the trial court erred when it found that Janine was entitled to compensation for providing care for Mother.
3. Whether the trial court erred when it found that $1,850 per month is a reasonable amount of compensation for Mother’s care.
4. Whether the trial court erred when it found that all the attorneys’ fees incurred by Janine through the year 2000 were reasonable and expended for the benefit of Mother.
5. Whether the trial court properly approved a budget for medical and other personal needs for the 2001 year.

[¶ 10.] Janine appeals the following:

6. Whether the trial court erred when it found it lacked jurisdiction to order Koyne to make payments from the Trust assets.

STANDARD OF REVIEW

[¶ 11.] “In guardianship proceedings, the trial court’s findings of fact are reviewed under the ‘clearly erroneous’ standard.” Guardianship of Larson, 1998 SD 51, ¶ 13, 579 N.W.2d 24, 27 (citing In re Guardianship of Viereck, 411 N.W.2d 102, 106 (S.D.1987) (citing SDCL 15-6-52(a))). According to this test, “[w]e will not overturn the trial court’s findings unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake was made.” Id. (citing Wiggins v. Sheumake, 374 N.W.2d 111, 114 (S.D.1985)).

[¶ 12.] “A jurisdictional challenge presents a question of law subject to de novo review.” State ex rel. Jealous of Him v. Mills, 2001 SD 65, ¶ 7, 627 N.W.2d 790, 792 (citing Red Fox v. Hettich, 494 N.W.2d 638, 642 (S.D.1993)).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the trial court erred when it found there was no agreement between Janine and Mother regarding the farm income.

[¶ 14.] The following statement was included in the accounting, which Janine submitted to the trial court:

[T]hese assets [income outside the Trust] consist of a limited amount of personal property, monthly income from a pension of $850, and social security of $226 amounting to $1,076 per month. The conservator is supplementing this income with the net income from a farm given to Janine Cone by her mother in 1996. During the reporting period, the farm operations resulted in a loss of $482.75. As a result of the loss no funds were available from farm operations in the current reporting period, (emphasis added.)

[¶ 15.] Koyne argues that there was an agreement between Janine and Mother that Janine would give her the income from the farm that Mother had deeded to her in 1996. Additionally, Koyne contends that Janine artificially created a loss when she created an equipment reserve fund of $5,000 on the farm’s 2000 tax return in order to assert as part of the accounting that she was unable to supplement Mother’s other income.

[¶ 16.] The trial court found that there was no agreement between Janine and Mother regarding the use of the farm income to support Mother. After a review of the record, we find that there was testimony in the record to support this finding.

[¶ 17.] First of all, Janine testified at trial that there was no such agreement. Furthermore, Janine testified that she provided money to Mother when she felt she needed it. Second, even if Janine had in past years voluntarily given Mother the income from the farming operations, there was no reserved life estate in the income from the farm. If this had been the parties’ intent, this would have been incorporated into the deed transferring the property to Janine and it was not. As to the funds that were set aside to purchase farm equipment, the testimony before the trial court was that the funds were needed to maintain the land in the Conservation Reserve Program.

[¶ 18.] 2. Whether the trial court erred when it found that Janine was entitled to compensation for providing care for Mother.

[¶ 19.] The trial court found that Janine, as guardian and conservator, is entitled to compensation for the care of Mother. Moreover, the trial court found that Janine was entitled to compensation for providing personal care, room, board, utilities and transportation to Mother. Koyne argues that the trial court erred in its determination.

[¶ 20.] South Dakota law is clear that a guardian or conservator is entitled to reasonable compensation for the care of the protected person. Specifically, SDCL 29A-5-116 provides, in relevant part:

Any guardian, conservator, attorney for any guardian or conservator and the attorney for the minor or person alleged to need protection, and any other individuals appointed by the court in connection with a guardianship or conser-vatorship proceeding, are entitled to reasonable compensation from the estate, including reimbursement for costs advanced.

[¶ 21.] Furthermore, SDCL-29A-5-403(8) provides for the method in which the guardian is to be compensated:

A guardian of a protected person shall file a report with the court within sixty days following the first anniversary of the appointment ... [The] report shall briefly state ... [t]he compensation requested and the reasonable and necessary expenses incurred by the guardian.

SDCL 29A-5-408 provides for a similar means by which a conservator may request compensation. Therefore, based on the above statutes, the trial court was not clearly erroneous when if found that Janine was entitled to compensation in her care of Mother.

[¶ 22.] 3. Whether the trial court erred when it found that $1,850 per month is a reasonable amount of compensation for Mother’s care.

[¶ 23.] The trial court found that $1,850 per month is a reasonable amount of compensation for Mother’s care. Koyne argues that the trial court erred when it made this finding because such a fee is not supported by the evidence and therefore, not justifiable. Furthermore, he argues that if Janine is compensated, then “the result will be that those assets which Mother intended Koyne and Will to ultimately receive from her estate will bear entirely the burden of Janine’s monthly fee.”

[¶ 24.] Janine and her family provide around the clock care for Mother. In order to provide such care, she is fulfilling Mother’s wish to live in a home with her family. Janine sacrifices job opportunities and personal time in order to give Mother the needed care. Janine testified that if she was being compensated for just twelve hours per day, at $10 per hour, it would amount to $8,600 per month in care alone. This amount does not take into account Mother’s share of the cost of the household monthly expenses, which Janine testified would be around $700 for Mother’s share of food, utilities, insurance and taxes.

[¶ 25.] Furthermore, Janine testified during the trial that she learned through her own investigation that assisted living facilities in the area cost as low as $1,850 per month to as high as $3,000 per month, depending on the type of care needed. Additionally, Loren Diekman, the CEO of Jenkins Living Center in Watertown, South Dakota, testified that basic care for Mother in an assisted living center would range from $1,850 to $2,100 per month. The ratio of residents to staff at these care facilities are about six to one.

[¶ 26,] Based on the above, there was adequate support in the record to justify the trial court’s finding that Janine is entitled to $1,850 per month compensation for Mother’s personal care, housing, meals, utilities and transportation.

[¶ 27.] 4. Whether the trial court erred when it found that all the attorneys’ fees incurred by Janine through the year 2000 were reasonable and expended for the benefit of Mother.

[¶ 28.] The trial court found that all of the legal fees incurred by Janine “to establish and defend the guardianship and conservatorship proceedings in Utah, California and South Dakota” were a direct benefit to [Mother] and therefore, should be paid by the Trust. These attorney fees have totaled more than $80,000. Koyne argues that Mother was not benefited from the proceedings because he did not object to Mother moving to South Dakota, and that the majority of the proceedings were a result of Janine’s request for compensation for the care of Mother. Additionally, he asserts that much of the legal fees incurred were unnecessary.

[¶ 29.] SDCL 29A-5-41K18) provides:

A conservator, in managing the estate, shall act as a fiduciary and in the best interests of the minor or protected person and shall, in addition, have the following powers, which may be exercised without prior court authorization except as otherwise provided: To employ persons, including attorneys, accountants, investment advisors, or agents; to act upon their recommendations without independent investigation; to delegate to them any power, whether ministerial or discretionary; and to pay them reasonable compensation.

[¶ 30.] We stated in Larson, 1998 SD 51, ¶ 31, 579 N.W.2d at 29, that the rule for the allowance of attorneys’ fees is as follows:

Attorneys’ fees necessarily incurred in the administration of [her] trust or in litigation for the benefit of the estate of [her ward] conducted in good faith and with reasonable care and prudence[ .] This rule is stated in the alternative, and should be understood as meaning that if the fees for services of an attorney employed by the [guardian] are necessarily incurred in the administration of the trust, that this is sufficient to authorize their allowance without a showing of benefit to the estate, (additional citations omitted.)

[¶ 31.] There was adequate evidence at trial to support the trial court’s finding of facts concerning the attorneys’ fees. The trial court had detailed affidavits before it from the Utah, California and South Dakota counsel. Additionally, Janine testified at trial that it was necessary to file a petition for the temporary guardianship of Mother in Utah because of Koyne’s demand that Mother return to California. The California proceedings were necessary to get Koyne terminated as temporary guardian in that state and for Jayne to be appointed as temporary guardian and conservator. Further, Janine testified that Mother’s wishes were to live with her in South Dakota and that Janine would be in charge of her personal and financial affairs. After a review of the record, it appears that all of the attorney fees expended in the three states were reasonable and prudent and for the benefit of Mother. Mother is able to live with her family in a home setting with 24-hour care. Therefore, the trial court was not clearly erroneous when it found that the attorneys’ fees were necessary and should be paid by the Trust.

[¶ 32.] 5. Whether the trial court properly approved a budget for medical and other personal needs for the 2001 year.

[¶ 33.] The trial court approved the expenses submitted in the 2000 accounting and additionally approved expected expenses for the year 2001. Koyne argues that the trial court erred when it did this because the clear language of SDCL 29A-5-408 provides that a conservator shall file an accounting each year and the accounting should not cover a period of more than one year.

[¶ 34.] SDCL 29A-5-408 provides, in relevant part:

A conservator shall file an accounting with the court within sixty days following the first anniversary of the appointment and:
(1) At least annually thereafter;
(2) When the court orders additional accounts to be filed;
(3) When the conservator resigns or is removed; and
(4) When the conservatorship is terminated.
A conservator may elect to file a periodic accounting on a calendar-year basis. However, in no event may such an accounting cover a period of more than one year. A calendar-year report shall be filed with the court no later than April fifteenth of the succeeding year.
An accounting shall include:
(1) A listing of the receipts, disbursements and distributions from the estate under the conservator’s control during the period covered by the account;
(2) A listing of the estate;
(3) The services being provided to the protected person;
(4) The significant actions taken by the conservator during the reporting period;
(5) A recommendation as to the continued need for conservatorship and any recommended changes in the scope of the conservatorship;
(6) Any other information requested by the court or useful in the opinion of the conservator;
(7) The compensation requested and the reasonable and necessary expenses incurred by the conservator; and
(8) An annual inventory of any item of tangible personal property with a value of two thousand five hundred dollars or more which has come into the conservator’s possession or knowledge for the minor or protected person.

[¶ 35.] “If this Court were to use Koyne’s interpretation of this statute, then Janine would have to use her own funds to provide support for Mother and then seek a reimbursement from the Trust each year. As we stated in Larson, [i]n a case such as this ... [t]he [guardian] would be more financially prudent to attempt to terminate any assistance with finances for the disabled [person] in favor of outsiders as a form of financial self-defense.” 1998 SD 51, ¶ 32, 579 N.W.2d at 29-30. The trial court found that Mother’s annuity and social security benefits amount to just $1,076 per month and that this amount was inadequate to provide the needed level of support. Therefore, the Trust needs to supplement Mother’s monthly income, the funds to which Janine does not have access.

[¶ 36.] Under SDCL 29A-5-408(7), the court is not precluded from determining and approving a current budget. Specifically, this part of the statute provides that “the compensation requested and the reasonable and necessary expenses incurred by the conservator” shall be included in the accounting. If we were to hold that a conservator is not able to seek support for the protected person on a current basis, then the conservator would have to risk his or her own funds. We, therefore, hold that the trial court’s approval of the 2001 budget was not clearly erroneous.

[¶ 37.] 6. Whether the trial court erred when it found it lacked jurisdiction to order Koyne to make payments from the Trust assets.

[¶ 38.] The income beneficiary of the Trust, Mother, is a resident of South Dakota. Additionally, the accounting submitted by Janine was approved by the trial court. The trial court found that Mother’s social security and pension income were inadequate to provide for her support. Therefore, the trial court ordered the conservator to make demand upon the trustee for funds from the Trust. However, Janine appeals the trial court’s ruling in which it found it lacked jurisdiction over Koyne in his capacity as trustee to make payments to Mother, the income beneficiary. We reverse the trial court’s ruling.

[¶ 39.] In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the United States Supreme Court considered whether it had either in rem jurisdiction over the trust assets or in personam jurisdiction over the nonresident trustee. Although the Court held that it had neither in rem jurisdiction over the out-of-state trust, nor in personam jurisdiction over the non-resident trustee, the trustee in that case had not appeared, Id. at 250-51, 78 S.Ct. at 1238, 2 L.Ed.2d at 1285. If a court has in personam jurisdiction over a trustee of a trust, then that court has jurisdiction to order the trustee to distribute trust assets. See George T. Bogert, Trusts § 177 (6 Ed 1987). Koyne concedes that if the court properly has personal jurisdiction over the trustee, then there is jurisdiction to order Koyne to make payments from the Trust for Mother’s benefit.

[¶ 40.] Janine asserts that Koyne voluntarily appeared and testified in the trial court proceedings concerning Trust matters. Conversely, Koyne asserts he made a “special appearance” in the proceedings at the trial court and only appeared as an individual, not as trustee. However, this Court has eliminated the distinction between general and special appearances. In re J.W.W., 334 N.W.2d 513, 516 n.4 (S.D. 1983). Furthermore, under SDCL 15-6-12(b), jurisdictional objections must be raised as a defense in a motion. Although Koyne filed a motion claiming a special appearance, within that same motion he requested the court act on other matters regarding the Trust. He also sent interrogatories to the guardian, Janine.

[¶ 41.] After a review of the record, it is apparent that Koyne testified, negotiated and litigated in his trustee capacity in the South Dakota proceeding. Although he claims he only appeared as an individual, his involvement in the South Dakota proceedings makes his role as trustee subject to this Court’s personal jurisdiction. Therefore, the trial court had jurisdiction over him to order him to make payments pertaining to the issues before us in this appeal.

[¶ 42.] Further, in the alternative, the trial court had in personam jurisdiction over Koyne under this State’s Long Arm Statute. SDCL 15-7-2, provides, in relevant part:

Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through any employee, through an agent or through a subsidiary, of the following acts:
(11) Commencing or participating in negotiations, mediation, arbitration or litigation involving subject matter located in whole or in part within the state;
(12) Doing any act for the purpose of influencing ... judicial ... decision-making by any ... state ... official whose official function is being performed within the state, providing that an appearance to contest personal jurisdiction shall not be within this subsection; [or]
(14) The commission of any act, the basis of which is not inconsistent with the Constitution of this state or with the Constitution of the United States.

[¶ 43.] Janine argues that Koyne comes under the Long Arm Statute, and therefore, the jurisdiction of the trial court on several bases. First, she argues that Koyne “participated in negotiations involving the payment of trust funds for the care of Mother who resides in South Dakota.” Second, she contends that Koyne took part in litigation concerning the disbursements of trust funds for the care of Mother who resides in South Dakota. Third, Janine argues that Koyne testified at trial “for the purpose of influencing a South Dakota” judge regarding trust issues.

[¶ 44.] We recently stated in Denver Track and Trailer Sales, Inc. v. Design and Building Services, Inc., 2002 SD 127, 653 N.W.2d 88, that in order for the assertion of jurisdiction to comport with federal due process requirements, the assertion of jurisdiction must be such that it would not offend “traditional notions of fair play and substantial justice.” Id. at ¶ 10, 653 N.W.2d at 91 (citing International Shoe Co., v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)) (additional citations omitted). In interpreting the standard for determining whether sufficient minimum contacts are present to support personal jurisdiction, we have stated:

First, the defendant must purposefully avail himself of the privilege of acting in the forum state, thus invoking the benefits and protections of its laws. Second, the cause of the action must arise from defendant’s activities directed at the forum state. Finally, the acts of defendant must have substantial connection with the forum state to make the exercise of jurisdiction over defendant a reasonable one. An important factor bearing upon the reasonableness of asserting jurisdiction is to determine if defendant’s conduct and connection with the forum state are such that he would have reasonably anticipated being brought into court there.

Denver Truck, 2002 SD 127, ¶ 11, 653 N.W.2d at 91 (citing Opp v. Nieuwsma, 458 N.W.2d 352, 355-56 (S.D.1990)) (internal citations omitted).

[¶ 45.] Janine argues that Koyne “purposely availed” himself to the privilege of acting in South Dakota by participating in negotiations regarding paying funds to Mother out of the Trust, litigating issues regarding the payments of such funds, testifying before the South Dakota trial court, and using funds from the Trust to pay his attorney in South Dakota. Furthermore, the trial court proceedings were concerning the distribution of funds to Mother, a resident of South Dakota. We agree "with Janine that there were sufficient minimum contacts with South Dakota to make personal jurisdiction over Koyne proper. This jurisdiction also is supported by the fact that Koyne, as trustee, could have reasonably anticipated being brought into a South Dakota court after he refused to make payments from the Trust to Mother.

[¶46.] For the foregoing reasons, we hold that the trial court had personal jurisdiction over Koyne, as Trustee, to order him to make payments from the Trust regarding the issues of compensation for Janine’s care of Mother, expenses for the years 2000 and 2001, and the attorney fees.

[¶ 47.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2003 SD 33
    CAPITAL MOTORS, LLC, Employer and Appellee, and First Dakota Indemnity Co., Insurer and Appellee, v. William SCHIED, Claimant and Appellant.
    Nos. 22494, 22502.
    Supreme Court of South Dakota.
    Argued on Jan. 15, 2003.
    Decided April 2, 2003.

      Michael S. McKnight, Lisa Hansen Mar-so of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, South Dakota, Attorneys for appellees.
    Patricia A. Meyers, Heather M. Lam-mers of Costello, Porter, Hill, Heister-kamp, Bushnell & Carpenter, Rapid City, South Dakota, Attorneys for appellant.
   MEIERHENRY, Justice.

[¶ 1.] This appeal arises from a Workers’ Compensation claim brought by William Schied (Schied) against Capital Motors and its insurer First Dakota Indemnity Company (First Dakota). The Department of Labor (Department) determined that Schied was permanently totally disabled under the odd-lot doctrine and entitled to permanent total disability benefits.

[¶ 2.] Capital Motors and First Dakota appealed to circuit court. Upon review, the circuit court affirmed the Department’s findings on permanent total disability but reversed its award of benefits. The court determined that since Schied was employed he was not entitled to total disability benefits. The court limited Schied’s benefits to supplemental wage loss benefits which only required Capital Motors to pay the difference between his earned weekly wage and the workers’ compensation benefit plus a return-to-work bonus. Both parties appeal. We affirm the court’s determination that Sehied is permanently totally disabled but reverse and remand to reinstate the total disability benefits awarded by the Department.

FACTS

[¶ 3.] Twenty-six year old Sehied worked as an auto mechanic at Capital Motors in Pierre, South Dakota since 1997. On June 12, 1999, a car hoist exploded at work severely crushing Schied’s hand. Medical treatment involved three surgeries to the hand in the months after the accident and physical therapy. Nonetheless, he continued , to have problems and did not regain full use of the hand. Sehied lost flexibility and grip strength and could not grasp objects for any length of time. His treating physicians determined that his condition would steadily worsen likely leading to amputation of the middle finger of his injured hand. His treating physician restricted him from heavy lifting, the use of air impact tools, repetitive fine movements and from proximity to heat or dangerous objects because of the loss of feeling in his hand. As a result, Sehied was no longer able to work as a mechanic.

[¶4.] Schied’s education and training consisted of a high school diploma from Harrold, South Dakota and vocational training as an auto mechanic at Southeast Vocational Technical Institute in Sioux Falls, South Dakota. He began working as a line mechanic at Capital Motors in Pierre, South Dakota in 1997. As a line mechanic he fixed and repaired vehicles at a starting wage of $11 an hour plus incentive bonuses. At the time of his injury he was making $14.25 an hour.

[¶ 5.] After his release for light duty work in September of 1999, Sehied repeatedly contacted Capital Motors about returning to work. Capital Motors informed Sehied that a lot manager job and a service writer position were available, however, both jobs paid between $7.50 and $7.75 an hour. Sehied declined the jobs because the compensation was not enough to cover his living expenses and commuting costs to Pierre; it also was less than the $14.25 an hour he made prior to the injury and less than his weekly benefit amount of $408 a week.

[¶ 6.] Sehied secured a job in February, 2000, as a farm laborer. Sehied operated a chemical sprayer, fueled and oiled airplanes, operated farm equipment and assisted in the commercial hunting operation. The employer accommodated his injury by allowing him to pace his work according to what he was able to do. The job paid him $18,000 annually plus a $1,200 year-end bonus which was less than his workers’ compensation benefit.

[¶ 7.] Sehied petitioned for permanent total disability workers’ compensation benefits and a hearing was held on January 3, 2001. Schied’s vocational expert testified that based upon Schied’s educational background, physical limitations and vocational testing, he was not a candidate for rehabilitation. He also opined that Sehied had conducted a “reasonable but unsuccessful job search” and with his physical abilities and transferable skills, Schied’s farm employment was at the top end of available employment in his community.

[¶ 8.] The expert for the employer and insurance company testified that he had identified two positions in the Harrold labor market that paid equal to or in excess of Schied’s workers’ compensation benefits. The first position was for a night supervisor at a local construction company. This job, however, required strong management skills which the expert admitted Schied did not possess. The second position was for a service writer position with Capital Motors, which paid less than Schied’s workers’ compensation benefit rate.

[¶ 9.] The Department issued a Decision, Findings of Fact and Conclusions of Law in Schied’s favor. Capital Motors and First Dakota filed a Petition for Review to the Secretary of Labor which was granted. At a second hearing on June 26, 2002 Capital Motors presented additional evidence concerning a service writer position opening at Capital Motors in June of 2001 for which Schied had not applied. After considering this additional evidence, the Department determined once again that Schied was permanently totally disabled under the odd-lot doctrine and entitled to benefits. Capital Motors and its insurer appealed. The trial court affirmed the Department’s finding that Schied was permanently totally disabled but reversed the award of benefits. The circuit court held that Schied was only entitled to supplemental wage loss benefits under SDCL 62-7-41. Both Schied and Capital Motors and its insurer appeal. We address the following issues:

1.) Whether the claimant is permanently totally disabled under the odd-lot doctrine.
2.) Whether a workers’ compensation claimant found to be permanently totally disabled is restricted to supplemental wage loss benefits.

STANDARD OF REVIEW

[¶ 10.] Our standard of review in workers’ compensation cases is controlled by SDCL 1-26-37. “Under SDCL 1-26-37, when the issue is a question of fact then the clearly erroneous standard is applied to the agency’s findings; however, when the issue is a question of law, the actions of the agency are fully reviewable.” St. Luke’s Midland Regional Medical Center v. Kennedy, 2002 SD 137, ¶ 8, 653 N.W.2d 880, 883 (citations omitted). We will reverse only when, after careful review, we are firmly convinced a mistake has been made. Id. “[T]his Court gives great weight to the findings and inferences made by DOL [Department of Labor] on factual questions.” Id.; Wagaman v. Sioux Falls Const., 1998 SD 27, ¶ 12, 576 N.W.2d 237, 240 (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶6, 575 N.W.2d 225). “The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct.” Brown v. Douglas School Dist., 2002 SD 92, ¶ 17, 650 N.W.2d 264, 269 (citing Kurtz v. SCI, 1998 SD 37, ¶ 10, 576 N.W.2d 878, 882; Zoss v. United Bldg. Centers, Inc., 1997 SD 93, ¶ 6, 566 N.W.2d 840, 843).

DECISION

1.) Whether the claimant is permanently and totally disabled under the odd-lot doctrine.

[¶ 11.] Capital Motors claims that the trial court erred in affirming the Department’s finding that Schied was permanently totally disabled under the odd-lot doctrine as defined in SDCL 62-4-53. Under SDCL 62-4-53, Schied “has the burden of proof to make a prima facie showing of permanent total disability.” Once Schied meets this burden, the burden then shifts to the employer “to show that some form of suitable work is regularly and continuously available to the claimant in the community.” Id. An employer may meet this burden by showing that employment is available which is not sporadic and pays equal to or more than the claimant’s benefit amount. The law in effect at the time of Schied’s injury in 1999 stated:

An employee is permanently totally disabled if the employee’s physical condition, in combination with the employee’s age, training, and experience and the type of work available in the employee’s community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. An employee has the burden of proof to make a prima facie showing of permanent total disability. The burden then shifts to the employer to show that some form of suitable work is regularly and continuously available to the claimant in the community. An employee shall introduce evidence of a reasonable, good faith work search effort unless the medical or vocational findings show such efforts would be futile. The effort to seek employment is not reasonable if the employee places undue limitations on the kind of work the employee will accept or purposefully leaves the labor market. An employee shall introduce expert opinion evidence that the employee is unable to benefit from vocational rehabilitation or that the same is not feasible.
If an employee chooses to move to an area to obtain suitable employment that is not available within the employee’s community, the employer shall pay moving expenses of household goods not to exceed four weeks of compensation at the rate provided by § 62-4-3.

SDCL 62-4-53. Sporadic employment resulting in an insubstantial income is defined as follows:

(2) “Sporadic employment resulting in an insubstantial income,” employment that does not offer an employee the opportunity to work either full-time or part-time and pay wages equivalent to, or greater than, the workers’ compensation benefit rate applicable to the employee at the time of the employee’s injury. Commission or piece-work pay may or may not be considered sporadic employment depending upon the facts of the individual situation.

SDCL 62-4-52(2). “Whether a claimant makes a prima facie case to establish odd-lot total disability inclusion is a question of fact.” Spitzack v. Berg Corp., 532 N.W.2d 72, 75 (S.D.1995) (citations omitted). Schied undisputedly met his burden of establishing a prima facie showing of permanent total disability. Capital Motors, however, contends it sustained its burden of showing “that some form of suitable work was regularly and continuously available” to Schied in the Harrold community. Specifically, Capital Motors argues that evidence of a service writer position open and available in the community meets the requirements of “suitable work” “regularly and continuously available” as contemplated by the statute.

[¶ 12.] The Department found that Capital Motor’s vocational expert identified two positions in the Harrold labor market; however, one of the positions Schied was not qualified for and the other position, the service writer position at Capital Motors, paid wages below Schied’s workers’ compensation benefit rate. The Department found that although Capital Motors had raised the wage scale for the service writer positions, no service writer position was open at the time of either hearing. The Department additionally found that service writer positions at Capital Motors and at other businesses in Pierre were not regularly open and available and experienced very little turnover. Although the law does not require an employer actually to place a claimant in an open job, an employer must show more than mere possibility of employment. Spitzack, 532 N.W.2d at 76. Based upon the evidence, the Department’s finding that the employer had not shown that some form of suitable work was regularly and continuously available in the community was not clearly erroneous.

2. Whether a workers’ compensation claimant found to be permanently totally disabled is restricted to supplemental wage loss benefits.

[¶ 13.] Schied contends that the trial court erred when it limited his workers’ compensation benefits to supplemental wages loss benefits. The legislature in SDCL 62-7-41 defined the circumstances under which an employer can limit a claimant to supplemental wage loss benefits. For an employee “not totally disabled,” the statute allows an employer “in lieu of rehabilitation” to supplement the earned income of the partially disabled employee with additional wages to equal the workers’ compensation benefit plus a twenty percent “return to work incentive.” SDCL 62-7-41 states:

If an employee is not totally disabled but is unable to return to the employee’s usual and customary employment, the employer may, in lieu of rehabilitation, require the employee to accept, in addition to an earned income, a supplemental wage benefit to be paid by the employer which, in total with the earned income, equals the workers’ compensation benefit rate applicable to the employee at the time of the employee’s injury, plus a return to work incentive of twenty percent of the rate otherwise payable to the employee under § 62-4-3, provided the employee is actually offered employment or is employed.

(Emphasis added). The trial court affirmed the Department’s finding that Schied was permanently totally disabled yet, in determining the benefit amount, applied a statute which pertains only to claimants who are not permanently totally disabled.

[¶ 14.] Capital Motors argues that Schied is “not totally disabled” for purposes of the supplemental wage loss benefit statute. For this statute, the employer asks the Court to adopt a different definition of “total disability” from the definition which applies to the rest of the workers’ compensation statutes. Capital Motors contends that since Schied is working (albeit at a job with insubstantial income) he is receiving a windfall and should not receive the full benefit to which he is entitled for permanent total disability.

[¶ 15.] This Court has consistently stated that the Workers’ Compensation Law is strictly statutory and the provisions of the law govern its application.

When we are called upon to interpret the meaning of our worker’s compensation statutes, we must keep in mind the following principles. One, “[proceedings under the Workmen’s Compensation Law ... are purely statutory, and the rights of the parties and the manner of procedure under the law must be determined by its provisions.” Chittenden v. Jarvis, 68 S.D. 5, 8, 297 N.W. 787, 788 (1941). Two, if the language of a statute is clear, we must assume that the legislature meant what the statute says and we must, therefore, give its words and phrases a plain meaning and effect. Dubbelde v. John Morrell & Co., 473 N.W.2d 500 (S.D.1991). And three, if the statute has an ambiguity, it should then be liberally construed in favor of injured employees. Mills v. Spink Elec. Co-op., 442 N.W.2d 243 (S.D.1989).

Caldwell v. John Morrell & Co., 489 N.W.2d 353, 364 (S.D.1992). Additionally, the legislature has said in SDCL 2-14-4 that when a word or phrase is defined by statute, it has that same meaning in other statutes unless it clearly appears otherwise.

Whenever the meaning of a word or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly appears.

SDCL 2-14-4 (emphasis added). Furthermore, “[i]t is presumed that the legislature intended provisions of an act to be consistent and harmonious.” Steinberg v. South Dakota Dep’t of Military and Veterans Affairs, 2000 SD 36, ¶ 12, 607 N.W.2d 596, 600 (quoting Matter of Northwestern Public Service Co., 1997 SD 35, ¶ 14, 560 N.W.2d 925, 927) (citation omitted).

[¶ 16.] The legislature defined what constitutes total disability under the odd-lot doctrine in SDCL 62-4-53. There is no indication that it intended to apply a different definition in SDCL 62-7-41. The legislature’s allowance of supplemental wage loss benefits only to claimants who are “not totally disabled” is also in harmony with the statutes which describe rehabilitation benefits. Claimants who are candidates for rehabilitation may be required by their employer “in lieu of rehabilitation” to accept the supplemental benefits in addition to earned income plus a twenty percent return to work incentive. It was specifically found that Schied was not a candidate for rehabilitation nor had he applied for rehabilitation benefits.

[¶ 17.] The trial court erred in applying SDCL 62-7-41 to this case. We affirm the determination of Schied’s permanent total disability under the odd-lot doctrine and reverse the trial court’s decision to limit Schied to supplemental wage loss benefits and reinstate the Department’s ruling.

[¶ 18.] GILBERTSON, Chief Justice and SABERS and KONENKAMP, Justices and ERICKSON, Circuit Judge, concur.

[¶ 19.] ERICKSON, Circuit Judge sitting for ZINTER, Justice, disqualified.

      . A service writer position involves writing drop tickets, customer service, scheduling work, some diagnostic work and verifying mechanic hours per job.

      . Pierre is within sixty miles of Schied's residence and therefore within the Harrold labor market as defined in SDCL 62-4-52.

      . SDCL 62-4-52(2) and -53 were amended, effective July, 1999. The amendments became effective after the date of Schied’s injury and thus are not applicable. Generally, "[i]n workers' compensation cases the law in effect on the date of the injury governs the rights of the parties.” Sandner v. Minnehaha County, 2002 SD 123, ¶ 8, 652 N.W.2d 778, 782 (citing Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 9, 557 N.W.2d 764, 766).

      . SDCL 62-4-5.1 sets forth the procedure and requirements for a claimant who pursues rehabilitation:
      If an employee suffers disablement as defined by subdivision 62-8-1(3) or an injury and is unable to return to the employee’s usual and customary line of employment, the employee shall receive compensation at the rate provided by § 62-4-3 up to sixty days from the finding of an ascertainable loss if the employee is actively preparing to engage in a program of rehabilitation as shown by a certificate of enrollment. Moreover, once such employee is engaged in a program of rehabilitation which is reasonably necessary to restore the employee to suitable, substantial and gainful employment, the employee shall receive compensation at the rate provided by § 62-4-3 during the entire period that the employee is engaged in such program. Evidence of suitable, substantial, and gainful employment, as defined by § 62-4-55, shall only be considered to determine the necessity for a claimant to engage in a program of rehabilitation.
      The employee shall file a claim with the employee’s employer requesting such compensation and the employer shall follow the procedure specified in chapter 62-6 for the reporting of injuries when handling such claim. If the claim is denied, the employee may petition for a hearing before the department.


author: LEE D. ANDERSON, Circuit Judge.

text:
    2003 SD 50
    ESTATE OF John Leland NEISWENDER, Deceased.
    No. 22331.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 18, 2002.
    Decided April 30, 2003.

      Michael W. Strain and Candi L. Thomson of Morman Law Office, Sturgis, South Dakota, Attorneys for appellant, Claire Neiswender.
    John R. Frederickson of Frederickson Law Office, Deadwood, South Dakota, Attorneys for appellees, Margaret Reedy and Elaine Neiswender.
   LEE D. ANDERSON, Circuit Judge.

[¶ 1.] Claire Neiswender, as personal representative of the Estate of John Leland Neiswender, appeals from the judgment in favor of the contestant, Elaine Neiswender and other interested heirs.

[¶ 2.] Claire is the widow of John. Elaine is John’s daughter from a prior marriage. The trial court held that the parties had reached a settlement agreement. Under the agreement Claire, individually and as personal representative of the Estate, agreed to deed real property located in New Mexico to John’s cousin, Merilyn Howard, in exchange for all other heirs relinquishing any other interest or claims in the Estate. Later Claire requested that the grantees under the deed be changed to Elaine and her sister, Margaret Reedy. On appeal Claire contends that no enforceable agreement was reached.

[¶ 3.] This is the second time this case has been before this Court. See Estate of Neiswender, 2000 SD 112, 616 N.W.2d 83 (Neiswender I). There we held that no irrevocable family agreement existed between John and his co-tenants restricting the transfer of the New Mexico property to blood relatives.

FACTS

[¶ 4.] John died on July 17, 1998. His will specifically bequeathed $1,000 to each of his two daughters, Margaret Elizabeth Reedy (Margaret) and Barbara Elaine Ocshanna, a/k/a Elaine Neiswender (Elaine), as well as $20,000 to his stepdaughter (Claire’s daughter), Mari Etta Vickery and a total of $23,000 to his five grandchildren. His will also bequeathed his interest in land located in New Mexico to his wife Claire. The property consists of 160 acres leased for oil and gas exploration and production. John had a twenty-five percent interest in the land.

Settlement negotiations

[¶ 5.] Claire commenced informal probate proceedings on July 24, 1998. Elaine objected to the proceedings and filed a will contest which ultimately resulted in the court converting the estate to a formal probate and appointing Claire as personal representative with limited authority. In Neiswender I we held that no family agreement existed which would cause the New Mexico property to be excluded from the estate. While that issue was pending on appeal before this Court, negotiations ensued between Elaine (along with her family members) and Claire to settle disputed issues concerning the distribution of the estate assets, including the New Mexico property.

[¶ 6.] These settlement negotiations were finalized in a series of letters between attorneys for the parties on July 20 and 21, 2000. At this time attorney A.P. Fuller represented Elaine and attorney Steven Beardsley represented Claire and the estate. Patrick Westerfíeld, an attorney from New Mexico, also represented Claire and the estate at all pertinent times and assisted the estate with the legal work surrounding the New Mexico property.

[¶ 7.] Although the last settlement letters exchanged by counsel contained some variances in minor details, it appeared that a settlement had been reached. The attorneys participated in a telephonic status conference before Judge Warren Johnson on July 25, 2000. Beardsley appeared for Claire, and Fuller appeared for Elaine. During this status conference, both attorneys agreed that the parties had reached a settlement and the only thing left was execution of documents in accordance with that settlement agreement. The settlement agreement provided:

1. The Estate and Claire personally would transfer all of their right, title, and interest in and to the New Mexico property and in and to any oil, gas, and liquid hydrocarbons or minerals associated with that property.
2. A mutual release would be signed by the Estate, Claire personally and as Personal Representative of the Estate, and all other people named in the will including Elaine and Margaret
3. Claire was to receive any oil and gas lease payments that either had been paid or were to be paid through August 1, 2000.
4. Claire was to receive all other property under the Estate whether real, personal or combined and Elaine, Margaret and their children would disavow any interest in the Estate other than their interest in the New Mexico Property.
5. All objections to the Estate and the Will would be withdrawn.

Performance under the settlement

[¶ 8.] As had been agreed at the status conference, Fuller and Westerfíeld began preparing the documents necessary to carry out the settlement agreement including a mutual release, a stipulation for dismissal and order for dismissal, a quitclaim deed, and an assignment of oil, gas and mineral lease.

[¶ 9.] After Claire executed the quitclaim deed and assignment with a name misspelled, Westerfíeld contacted Fuller by letter stating that Westerfíeld would forward corrected documents to Claire for re-execution. At this point, the only other document to be executed under the settlement agreement was the mutual release, which needed to be signed by Claire.

[¶ 10.] While execution of the settlement documents was proceeding, on August 16, 2000, this Court affirmed the trial court’s ruling concerning the family agreement. Neiswender I. We held that no irrevocable family agreement existed between John and his co-tenants that would prevent transfer of the parcel to non-blood relatives.

[¶ 11.] Claire apparently became dissatisfied with the settlement agreement and refused to sign the mutual release or re-execute the quitclaim deed or assignment. In response Elaine filed a series of motions including a motion to hold the personal representative in contempt, a motion to compel the personal representative to execute all settlement documents and a motion to produce signed deeds.

[¶ 12.] A hearing on the motions and on the issues of whether the parties entered into a binding settlement agreement was held on August 29, 2001. Judge Johnson held that an agreement had been reached between the parties, the details of which could be found in the correspondence between attorneys Fuller and Wes-terfield in July 2000 and the transcript of the status conference held July 25, 2000.

STANDARD OF REVIEW

[¶ 13.] Our review begins with the findings of fact and a determination of whether the findings support the conclusions of law. The trial court’s findings of fact are given appropriate deference unless they are clearly erroneous, but conclusions of law are reviewed de novo. Jacobson v. Gulbransen, 2001 SD 33, 623 N.W.2d 84.

[¶ 14.] When a trial court determines that an agreement exists between the parties based upon the evidence and testimony presented at trial, that determination will be reviewed with great deference. Jacobson, 2001 SD 33 at ¶ 13, 623 N.W.2d at 88.

ANALYSIS AND DISCUSSION

[¶ 15.] The issue in this case is whether the parties reached an agreement settling the disputes between them. A settlement agreement is contractual in nature and subject to the same rules of construction as contracts. Lewis v. Benjamin Moore & Co., 1998 SD 14, 574 N.W.2d 887. An agreement exists when the following elements are present: (1) the parties are capable of contracting; (2) the parties consent to the agreement; (3) the agreement is for a lawful object; and (4) the parties have sufficient cause or consideration. SDCL 53-1-2. In this case there is no dispute as to the capability of the parties to contract, nor is there any dispute as to the lawful object of the agreement.

Consent

[¶ 16.] Consent of the parties to a contract must be free, mutual and communicated by each to the other. SDCL 53-3-1. Whether consent was communicated is not an issue in this case. Communications by counsel are binding on the parties, Lewis, 1998 SD 14 at ¶ 10, 574 N.W.2d at 889.

[¶ 17.] Consent is not real or free if obtained through duress, fraud, undue influence, or mistake. SDCL 53-4-1. In this case, Claire contends that the contestants, namely Elaine and Margaret, withheld information from her regarding the value of the mineral interest in the New Mexico property. Therefore, Claire claims her consent was the result of fraudulent inducement.

[¶ 18.] The trial court found that the contestants of the will, including Elaine and Margaret, did not withhold any information from Claire and that any contention Claire had as to fraud or fraudulent inducement was not supported by the evidence. The trial court further found that Claire and her attorneys had personal knowledge of the mineral lease, as attested to by her signing of such a lease on April 12, 1999. Additionally, the trial court noted that it is the statutory duty of the personal representative to prepare an inventory and appraisement of the decedent’s property, describing in reasonable detail the property and its fair market value, using an appraiser if necessary. SDCL 29A-3-706. It is also the duty of the personal representative to supplement this inventory and appraisement if property not included in the original inventory comes to the representative’s attention or if the value or description indicated in the original inventory turns out to be false or misleading. SDCL 29A-3-708.

[¶ 19.] Claire, as personal representative of the Estate, had a duty to know the value of the New Mexico property. The trial court held that any failure of Claire to learn the full extent and value of the mineral lease must rest on her shoulders and not those of the contestants. The record supports the trial court’s finding that consent to the settlement agreement on the part of Claire was not gained through any duress, fraud, undue influence, or mistake on the part of the contestants.

[¶ 20.] Consent is not mutual unless the parties all agree upon the same thing in the same sense. SDCL 53-3-3. The existence of mutual consent is determined by considering the parties’ words and actions. Coffee Cup Fuel Stops v. Donnelly, 1999 SD 46, 592 N.W.2d 924. In this case, Claire also contends that she and the contestants failed to establish the exact terms of the settlement agreement and that the parties were not consenting to the same terms.

[¶21.] In the final exchange of settlement letters between counsel there may have remained an issue whether the transfer of rights and property under the settlement agreement should occur contemporaneously. During the status conference hearing the attorneys did point out to the trial judge that the conference was only to determine the status of the tentative agreement that they believed had been reached. Following the conference, however, attorneys for both parties began preparing documents in accordance with the agreement outlined at the status conference and both parties proceeded to sign those documents without objection until after our decision was handed down in Neiswender I.

[¶ 22.] The trial court found that there was a meeting of the minds on all relevant terms of the settlement agreement. This mutual meeting of the minds was evidenced by the written negotiations between Westerfield and Fuller and the conduct of the parties in executing the settlement documents following the July 25, 2000 status conference. The record supports this finding that the consent of the parties was mutual.

Consideration

[¶ 23.] Claire also claims a lack of consideration for the agreement. Any benefit conferred or any prejudice suffered is sufficient consideration for a contract. SDCL 53-6-1. See Harms v. Northland Ford Dealers, 1999 SD 143, 602 N.W.2d 58; Garrett v. BankWest, Inc., 459 N.W.2d 833 (S.D.1990). The trial court found that Claire was transferring the property for several reasons, including the release of any current and future claims by the contestants; to avoid being deposed; and to save further expense, personal grief, and emotional trauma associated with the ongoing family estate contest. Any of these reasons standing alone is sufficient consideration for an agreement and the trial court correctly found that sufficient consideration existed. See Crilly v. Morris, 70 S.D. 153, 15 N.W.2d 742 (1944); Ewing v. Waddington, 62 S.D. 166, 252 N.W. 28 (1933)

Changes of the devisees

[¶ 24.] In his final order following the motion hearings on August 29, 2001, Judge Johnson amended the original agreement by changing the recipient of the New Mexico property from John’s cousin, Merilyn Howard, as the parties had originally agreed, to John’s daughters Elaine and Margaret. Claire now objects to this change.

[¶ 25.] Claire herself requested that the devisees be changed. Claire sent a letter to Westerfield stating that she was interested in deeding the property to Elaine and Margaret rather than Merilyn Howard. This preference was again expressed in a phone call to Margaret on December 26, 2000.

[¶ 26.] The trial court incorporated Claire’s own request in its final order entered February 22, 2002, and Elaine’s family has never objected. We hold that the trial judge did not err in entering this order.

CONCLUSION

[¶ 27.] The trial court was correct in determining that a settlement agreement was reached in the John Leland Neiswen-der Estate. The judgment is affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

[¶ 29.] ANDERSON, LEE D, Circuit Judge, for AMUNDSON, Retired Justice, disqualified.

[¶ 30.] MEIERHENRY, Justice, not having been a member of the Court at the time this action was submitted to the Court did not participate.


author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Mustafaa Naji FORT, Petitioner, Appellant.
    No. C2-01-1732.
    Supreme Court of Minnesota.
    May 1, 2003.

      Leonardo Castro, Chief Public Defender, James A. Kamin, First Assistant Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul, Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, Minneapolis, for respondent.
    Howard S. Carp, Minneapolis, Teresa J. Nelson, Minnesota Civil Liberties Union, St. Paul, for amicus curiae Minnesota Civil Liberties Union.
    Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, Anoka, John Kingrey, Executive Director, St. Paul, for amicus curiae Minnesota County Attorneys Association.
   OPINION

PAGE, Justice.

This case arises from appellant Musta-faa Naji Fort’s appeal of a court of appeals’ decision reversing an order to suppress cocaine found during a search of his person as part of a routine traffic stop. Fort was a passenger in the vehicle at the time of the traffic stop. In suppressing the cocaine found during the search, the district court held that “in the context of a routine traffic stop, where police do not have an articulable basis to seek consent to search a passenger and fail to inform the passenger of the right to refuse consent to search, a subsequent search violates Article I, Section 10 of the Minnesota Constitution.” On appeal, the court of appeals reversed and remanded to the district court, holding that the district court failed to consider the totality of the circumstances as required by existing law. Exercising our independent authority to interpret our own state constitution, we conclude that in the absence of reasonable, articulable suspicion a consent-based search obtained by exploitation of a routine traffic stop that exceeds the scope of the stop’s underlying justification is invalid. Ascher v. Commissioner of Public Safety, 519 N.W.2d 183, 185 (Minn.1994). We therefore reverse.

On March 17, 2001, at approximately 9:30 p.m., Fort, an 18-year-old, African-American male, was the passenger in a car stopped by two Minneapolis police officers for speeding and having a cracked windshield. The vehicle was stopped at the intersection of Broadway and Lyndale Avenues in north Minneapolis, a location the officers considered to be in a “high drug” area. At the time of the stop, the police officers were in a marked squad car with its emergency lights activated. These lights remained activated as the officers exited the vehicle and approached the stopped car.

One officer approached the driver’s side of the vehicle to speak to the driver, while the other officer approached the passenger’s side to speak to Fort. This officer, in full uniform, was holding a flashlight and wearing a gun, mace, radio, and handcuffs on Ms belt. After determining that neither the driver nor Fort had a valid driver’s license, the officers decided to tow the vehicle. The first officer escorted the driver to the squad car to speak with him. The second officer asked Fort to exit the vehicle, escorted Fort to the squad car, and began questiomng him about drugs and weapons. Specifically, the officer asked Fort if there were any drugs or weapons in the vehicle. Fort replied, “No, sir.” The officer then asked, “Do you have any drugs or weapons on you?” Fort again replied, “No, sir.” Finally, the officer asked, “Would you mind if I searched you for drugs or weapons?” Fort answered, “No, sir.” The officer did not inform Fort that he had a right to refuse the search request or that he was free to leave without being searched.

At the suppression hearing, the officer testified that before he began questioning Fort he noticed Fort was nervous and avoided eye contact. He further testified that he spoke to Fort in a normal tone of voice and intended to offer Fort a ride home, although he never informed Fort of his intent. In order to conduct the search, the officer had Fort place his hands on the squad car and then performed a pat-down. During the search, the officer felt and removed from one of Fort’s pockets several small, hard lumps, which he suspected to be crack cocaine. Fort was subsequently arrested.

Fort was charged with fifth-degree felony possession of a controlled substance, in violation of Minn.Stat. § 152.025 (1998). He moved to suppress the cocaine found during the search on the basis that police officers may not justify a search based on consent during the course of a routine traffic stop unless there is a valid race-neutral reason to suspect wrongdoing. The district court granted Fort’s motion, concluding that a search of a passenger in a vehicle conducted during the course of a routine traffic stop violates Article I, Section 10, of the Minnesota Constitution if the police officer (1) does not have an articulable basis to seek consent to search and (2) fails to inform the passenger of his right to refuse consent to search. On appeal, the court of appeals remanded, holding that existing law requires a totality-of-the-circumstances approach in analyzing consent-to-search cases. Fort petitioned this court for further review, which we granted.

Fort asks us to apply Article I, Section 10, of the Minnesota Constitution to require that a police officer have reasonable articulable suspicion to expand the scope of a routine traffic stop in order to investigate other matters unrelated to the reason for the stop and to request consent to search. The state responds by arguing that consent law should not be modified simply because a consent occurs in the context of a traffic stop, and that this case can be resolved without modifying state constitutional law. Moreover, the state maintains that Fort was not seized at the time of the consent inquiry, but that, at the very least, the case should be remanded to the district court for a factual determination on this issue. The state conceded in its brief and at oral argument that if Fort was seized at the time of the consent inquiry, then the seizure would be impermissible because the seizure went beyond the scope and duration of the traffic stop. See State v. Blacksten, 507 N.W.2d 842, 846 (Minn.1993) (stating “detention of the person stopped may not continue indefinitely but only as long as reasonably necessary to effectuate the purpose of the stop” (citing United States v. Sharpe, 470 U.S. 675, 686-88, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985))).

When reviewing a pretrial order on a motion to suppress evidence, this court may independently review the facts and determine whether- the district court erred in suppressing the evidence as a matter of law. State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). Moreover, this court reviews de novo a district court’s conclusions as to the application of a provision of the Minnesota Constitution. See State v. Wicklund, 589 N.W.2d 793, 797 (Minn.1999).

While the district court did not make specific findings with respect to whether Fort was seized at the time of the investigative questioning and consent inquiry, we can make that determination based on the record before us. Moreover, a fair reading of the district court’s memorandum leads to the conclusion that the district court implicitly concluded that Fort had been seized and that the questions went beyond the scope of the initial stop.

Investigative stops are permitted if there is a particularized basis for suspecting criminal activity. State v. George, 557 N.W.2d 575, 578 (Minn.1997); see also United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (stating that “the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity”). Here, the car was stopped for speeding and a cracked windshield, both of which are violations of traffic laws. Thus, there was a particularized reason for suspecting criminal activity and a basis for stopping the car for further investigation of that activity.

We next determine whether Fort was seized under Article I, Section 10, of the Minnesota Constitution and the Fourth Amendment of the United States Constitution at the time the officer questioned him regarding the presence of narcotics and weapons. The state suggests that Fort, as a passenger, was not the subject of the traffic offense and was free to leave. However, “[t]temporary detention of individuals during the stop of an automobile by the police” constitutes a seizure under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). While the Supreme Court did not specifically address whether a vehicle’s passengers are also considered seized during a traffic stop, the facts in Whren indicate that the vehicle was carrying passengers. Id. at 808, 116 S.Ct. 1769. Nevertheless, we need not decide whether a passenger in a stopped vehicle is also seized because, even if Fort was not seized as part of the stop, a person is seized if a reasonable person, under the circumstances, would not feel free to disregard the police questions or to terminate the encounter. See State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995).

Here, Fort was a passenger in a vehicle that was stopped for a routine traffic violation. An officer in full uniform, including flashlight, gun, handcuffs, and mace, approached the passenger’s side of the vehicle while the squad car lights continued to flash and asked Fort to exit the vehicle. The officer then escorted Fort to the squad car and proceeded to ask him a series of questions. The questions were particularly intrusive given that they were aimed at soliciting evidence of drugs and weapons. On- the facts presented, we conclude that, because an objectively reasonable person would not feel free to disregard the police officer’s questions or to terminate the encounter, Fort was seized.

While there is nothing in the record to suggest that the initial stop was improper, the scope and duration of a traffic stop investigation must be limited to the justification for the stop. See State v. Wiegand, 645 N.W.2d 125, 135 (Minn.2002). In Wiegand, the defendants were stopped for a burned-out headlight, but the police conducted a search using a narcotics-detection dog in the absence of reasonable articulable suspicion of drug-related activity. Id. at 128-29, 137. We reversed the defendants’ convictions holding, among other things, that under Article I, Section 10, of the Minnesota Constitution any expansion of the scope or duration of a traffic stop must he justified by a reasonable articulable suspicion of other criminal activity. Id. at 135.

Here, the officer testified at the pretrial hearing that the location of the stop was in a “high drug” area. He further testified that he intended to offer Fort a ride home and therefore conducted the search for purposes of officer safety. However, the district court, in concluding that the officer had no articulable basis to justify the search request, found this intention was not credible because it was not communicated to Fort. Moreover, the officer never said he suspected any crime other than the traffic violations. The purpose of this traffic stop was simply to process violations for speeding and a cracked windshield and there was no reasonable articulable suspicion of any other crime. Investigation of the presence of narcotics and weapons had no connection to the purpose for the stop. We therefore conclude that the investigative questioning, consent inquiry, and subsequent search went beyond the scope of the traffic stop and was unsupported by any reasonable articulable suspicion. Therefore, we reverse the court of appeals and reinstate the district court’s suppression order.

Reversed.

      . While the investigative questioning, consent inquiry, and subsequent search may also have extended the duration of the traffic stop beyond that necessary for the sfop, the record is such that we cannot say so definitively. That determination, however, is not required for resolution of the issues before us.

      . We feel compelled to make clear here, as we did in Wiegand, that our holding should not be read as limiting in any Way a search conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for purposes of officer safety. See State v. Wiegand, 645 N.W.2d 125, 136 (Minn.2002).


author: PER CURIAM.

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Brian J. PETERSON, an Attorney at Law of the State of Minnesota. (No. CX-00-2049), and In re Petition for Reinstatement of Brian J. Peterson, a Minnesota Attorney, Registration No. 85625. (CX-03-221).
    Nos. CX-00-2049, CX-03-221.
    Supreme Court of Minnesota.
    May 2, 2003.
   ORDER

PER CURIAM.

This court indefinitely suspended respondent/petitioner Brian J. Peterson (petitioner) from the practice of law on February 1, 2001, with no right to petition for reinstatement for six months. In re Peterson, 620 N.W.2d 29 (Minn.2000) (No. CX-00-2049). On June 14, 2002, the Director of the Office of Lawyers Professional Responsibility filed a second petition for disciplinary action alleging that petitioner filed an attorney’s lien against a client’s homestead using an altered waiver of the homestead exemption and handled client funds while suspended in violation of Minn. R. Prof. Conduct 1.8(j), 3.1, 3.4(b) and (c), 5.3(c), 8.1(a)(1), and 8.4(c) and (d), and Rule 26, Rules on Lawyers Professional Responsibility (RLPR).

The court appointed a referee to conduct a hearing on the matters raised in the June 14, 2002, petition. In findings of fact, conclusions and recommendation as to discipline filed November 1, 2002, the referee found that petitioner had engaged in the alleged misconduct and recommended that his existing suspension continue until at least February 1, 2003.

On April 3, 2003, this court heard oral argument on the referee’s findings, conclusions, and recommendation. On April 4, 2003, the court filed an order adopting the referee’s findings, his conclusion that petitioner’s conduct violated Minn. R. Prof. Conduct 1.8(j), 3.1, 3.4(b), 8.4(c) and 8.4(d), and his recommendation that petitioner remain suspended until at least February 1, 2003, with an opinion to follow. See In re Peterson, 658 N.W.2d 875, 875 (Minn.2003) (No. CX-00-2049). Because February 1, 2003, had already passed, the court also ordered that petitioner could petition for reinstatement immediately. Id.

In fact, on February 3, 2003, petitioner had filed a petition for reinstatement from his earlier suspension. Subsequent to the court’s April 4 order, the parties entered into a stipulation in which they state that petitioner has complied with all conditions for reinstatement and jointly recommend that petitioner be reinstated to the practice of law without further hearing and that he be placed on supervised probation for two years subject to the following conditions:

a.Petitioner shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Petitioner shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, petitioner shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
b. Petitioner shall abide by the Minnesota Rules of Professional Conduct (MRPC).
c. Petitioner shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Until a supervisor has signed a consent to supervise, petitioner shall on the first day of each month provide the Director with the documents and information described in paragraph d. below. Petitioner shall make active client files available to the Director upon request.
d. Petitioner shall cooperate fully with the supervisor’s efforts to monitor compliance with this probation. Petitioner shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Petitioner shall provide the supervisor with copies of all homestead liens and homestead lien waivers. Petitioner shall notify his supervisor of any fee dispute with his cliént and consult with his supervisor regarding his billing time sheets and the appropriate resolution of the dispute. Petitioner’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Within thirty days from the execution of this stipulation, petitioner shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that petitioner is in compliance with probation requirements. Petitioner shall provide progress reports as requested.
f. Petitioner shall maintain law office and trust account books and records and business account books and records in compliance with Minn. R. Prof. Conduct 1.15, and Lawyers Professional Responsibility Board Amended Opinion No. 9. Such books and records shall be made available to the Director within thirty days of the approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance. Trust account books and records shall include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips and bank reports of interest, service charges and interest payments to the Lawyers Trust Account Board. Law office books and records shall include business account check register, canceled checks, duplicate deposit slips, bank statements, billing statements, and a general ledger showing income and expenses from the practice of law.
g. Petitioner shall continue his practice of obtaining written retainer agreements and of submitting all client fee disputes to no-cost or low-cost fee arbitration.
h. Upon reinstatement petitioner shall pay his annual attorney registration fee and comply with any subsequent order of this Court.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that petitioner Brian J. Peterson is reinstated to the practice of law, effective upon payment of his attorney registration fee, and is placed on supervised probation for two years, subject to the agreed-upon conditions set forth above. Petitioner shall pay to the Director the sum of $900 in costs and disbursements pursuant to Rule 24, RLPR, payable within a reasonable period of time after petitioner resumes the practice of law, as determined by the Director. Under the circumstances of this case, taxation of additional disbursements sought by the Director in No. CX-00-2049 is denied. Because we accept the parties’ stipulation and recommendation for immediate restatement, no opinion will follow the April 4, 2003, order issued in No. CX-00-2049.


author: G. BARRY ANDERSON, Judge.

text:
    In the Matter of the TRUST CREATED UNDER AGREEMENT WITH George B. LANE, dated December 30, 1935. In the Matter of the Trust for the Benefit of George Lane Barbour Under Article V. of the Will of George B. Lane. In the Matter of the Trust Created Under Agreement with Nellie S. Lane, dated December 30, 1935. In the Matter of the Trust of Gwenyth Barbour DeWitt Under Articles V. and VII. Of the Will of Lewis W. Barbour.
    No. C6-02-1789.
    Court of Appeals of Minnesota.
    April 29, 2003.

      Robert A. LaFleur, Jeffrey D. Bores, Becky L. Erickson, Chestnut <& Cam-bronne, P.A., Minneapolis, MN, for appellants Jeffrey Hale Barbour and Pamela Miller.
    Mary R. Vasaly, Margaret A. Garvin, Maslon Edelman Borman & Brand, Minneapolis, MN, for respondents George L. Barbour and Charles B. DeWitt.
    R. Thomas Greene, Jr., James D. Lamm, Rider, Bennett, Egan & Arundel, LLP, Minneapolis, MN, for Trustee U.S. Bank National Association.
    William J. Berens, Christopher T. Sha-heen, Dorsey & Whitney, LLP, Minneapolis, MN, for John Gottsleben.
    Considered and decided by WILLIS, Presiding Judge, SCHUMACHER, Judge, and ANDERSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

In this probate proceeding, appellants contest the district court’s determination that respondent was eligible to benefit from a testamentary trust. Appellants argue that the district court erred in (1) finding that respondent, whose mother was explicitly excluded from the trust, was a beneficiary of the trust by virtue of his adult adoption by his uncle and (2) denying the trustee’s petition to investigate the circumstances surrounding respondent’s adoption. We affirm.

FACTS

George B. Lane was the founder of a company that through a series of mergers became known as Lane, Piper and Jaffray. He married Nellie Lane, and although the couple did not have any biological children, they adopted Nellie’s adult brother, Lewis Barbour. Lewis, the couple’s only child, received large portions of their estate.

In the mid 1930’s the Lanes created a series of trusts for the benefit of Lewis and his two sons, Henry and George Barbour. The trusts provided Lewis with a lifetime income and, upon his death, divided the bulk of the estate into two equal shares for Henry and George and created a class gift for their “issue.” The power of appointment for Henry, Lewis and George was limited to their relatives, surviving spouses and descendents of spouses.

The trusts did not, however, provide for Lewis’ only daughter Gwenyth. Instead, George Lane’s will states:

I have made no provisions in this instrument for my grand-daughter Gwenyth Barbour, daughter of my son, Lewis W. Barbour, anticipating that he will himself make such provision for her as he deems just and proper.

Lewis did create a trust for Gwenyth that provided her with a lifetime income that upon her death was to be divided equally among her children, kept in trust for those children and distributed at age 50.

Henry had two children during his first marriage: Jeffery and Pamela. When Henry remarried, he adopted his new wife’s adult son, John Gottsleben. In 1988, the district court found Gottsleben to be Lewis’ grandchild and thus eligible to benefit from the trust. Respondent asserts that there has never been an investigation into the circumstances of Gottsle-ben’s adoption.

Gwenyth had only one child — Charles DeWitt. George never married and has no natural children. In 1998, in an adult adoption proceeding in California, George adopted his nephew, Charles DeWitt. The adoption decree provides that DeWitt shall be “regarded and treated in all respects as the lawful child [of George Barbour’s].” The parties agree that the following diagram accurately depicts the Lane family tree.

(Dash indicates adoptions).

In October 2000, the trustee filed a petition with the Minnesota district court seeking, among other things, permission to investigate DeWitt’s status as a potential beneficiary as George’s adopted son. Henry’s two children by his first marriage, Jeffery and Pamela, supported the petition.

In June 2001 the district court concluded that DeWitt is George’s son and was therefore a beneficiary of the trust, and that there was no need to investigate De-Witt’s status. The district court based its decision on (1) Minnesota’s presumption that adopted persons are treated the same as natural children for inheritance purposes is “extremely strong” and nearly “impossible to overcome” (2) the Lane’s wills and trusts state on multiple occasions that adopted children are eligible to be beneficiaries; (3) the fact that Nellie was adopted and the Lane’s adopted her brother when he was an adult; (4) Gwenyth’s exclusion was immaterial; (5) language in the trust instrument anticipated that Gwenyth “and possibly her issue” would be provided for by Lewis indicating that the Lanes did not intend to completely exclude her. This appeal followed.

ISSUES

I. Did the district court err in concluding that respondent was eligible under the terms of a testamentary trust to take as his uncle’s heir following his adult adoption by his uncle despite the explicit exclusion of respondent’s mother?
II. Did the district court err in refusing to allow the trustees to investigate the circumstances and purpose of Charles DeWitt’s adoption?

ANALYSIS

I

Appellants first argue that the district court erred by concluding that De-Witt is entitled to benefit from the Lanes’ trust. At the heart of appellants’ argument is the theory that because DeWitt’s mother was intentionally excluded, the Lanes therefore wanted to exclude her children as well and thus DeWitt should not be allowed to receive any benefits from the trust. Appellants contend allowing DeWitt to benefit from the trust, as George’s heir by adoption, would thwart the Lanes’ intent.

“The citadel of will and trust construction, before which all other rules of construction must bow, is the elusive ‘intent of the trustor or testator.’” In re Harrington, 311 Minn. 403, 405, 250 N.W.2d 163, 165 (1977 (quotation omitted)). When construing a testamentary trust this court’s “primary concern is to give effect to the testator’s intent as expressed in the plain language of the will.” In re Kischel, 299 N.W.2d 920, 923 (Minn.1980). “In construing a will, the cardinal rule is that the testator’s intention is to be gathered from the language of the will itself.” In re Shields, 552 N.W.2d 581, 582 (Minn.App.1996) (quotation omitted), review denied (Minn. Oct 29,1996).

Conversely, intention which the testator may have had, but did not express in his will, cannot be considered. Though the court is to consider surrounding circumstances, it cannot speculate what the testator would have done with knowledge of events subsequent to his or her death and thereby rewrite the will.

In re Hartman, 347 N.W.2d 480, 484 (Minn.1984) (quotation and citation omitted).

A settlor’s “intention must be ascertained from the language of his will, which may have a meaning controlled by surrounding circumstances or context.” In re Holden’s Trust, 207 Minn. 211, 215, 291 N.W. 104, 106 (1940). The specific provisions of the document should not be read in isolation and whenever possible, “effect should be given to every provision” of the instrument. In re Wyman, 308 N.W.2d 311, 315 (Minn.1981). “A court may not rewrite a trust or will to provide by conjecture what a [settlor] might have intended if he knew how events would occur.” In re Wiedemann, 358 N.W.2d 139, 142 (Minn.App.1984). On review, appellate courts evaluate the district court’s findings concerning wills and trusts under a clearly erroneous standard and review conclusions of law de novo. In re Simpkins, 446 N.W.2d 188, 190 (Minn.App.1989).

In Minnesota, adopted children have the same legal standing “as biological children in all respects, including their right to inherit by laws of intestacy or under appropriate testamentary provisions.” Harrington, 311 Minn, at 408, 250 N.W.2d at 166 (quotation omitted). Minnesota has long been a forerunner in creating “strong statutory policy favoring the inheritance rights of adoptees.” Toombs v. Daniels, 361 N.W.2d 801, 806 (Minn.1985).

The supreme court has been very clear that this state’s laws create a clear presumption that adopted children are included in a will or trust provision. Harrington, 311 Minn, at 410, 250 N.W.2d at 167. For testamentary purposes, the word “children” includes adopted children. In re Nash, 265 Minn. 412, 416, 122 N.W.2d 104, 107 (1963). The presumption that adopted children have the same rights as any other children will only be overcome if the adopted child is explicitly excluded by the settlor. Toombs, 361 N.W.2d at 805.

The intent to exclude a person from a trust need not appear solely on the face of the document itself, but can be determined from surrounding circumstances. In re Uliscni, 372 N.W.2d 759, 762 (Minn.App.1985). A person need not be expressly named and identified as disinherited in order to be excluded. Id. at 761. Nevertheless the settlor must make the intention to exclude explicitly clear. Toombs, 361 N.W.2d at 805.

For example, in the context of an adopted person’s ability to inherit, the supreme court held that when a testator used the phrase “hereafter born” the testator was merely referring to children who would be brought into the family after the execution of the trust and did not declare an intention to exclude adopted children. Nash, 265 Minn. at 419, 122 N.W.2d at 109. Similarly, in Harrington the supreme court concluded that the phrases “the child or children of my said daughter, the issue of her body” “if any born after my decease” and “in any such after-born child or children” were not sufficiently explicit to rule out adoptees. Harrington, 311 Minn. at 404, 410, 250 N.W.2d at 164, 167. Conversely, where a testator explicitly stated that he “specifically disinherit[ed] any and all persons who are or who claim to be my heirs at law, except as herein provided” the district court properly concluded that the testator’s child born out of wedlock was excluded from the will. Uliscni, 372 N.W.2d at 762.

Here, the trust specifically excludes Gwenyth. The language clearly identifies her by name and states that she was purposefully excluded from the trust based on the assumption that her father would care for her. But the trust does not state or even address whether Gwenyth’s children are not to benefit from the trust, much less explicitly exclude her children. The trust simply makes no mention of her issue and the testamentary documents are silent as to inclusion or exclusion.

The Lanes’ testamentary documents are quite explicit that adoptees can take as heirs under the trust. On numerous occasions the trusts specifically state that adoptees were to be treated equally for inheritance purposes. Further, the Lanes have a considerable history of interfamilial adult adoption. Appellants’ grandfather was adopted as an adult by his sister and brother-in-law and named in their will and trust as their son and heir. More recently appellants’ own stepbrother was adopted as an adult and has been permitted to benefit from the trust.

Underlying appellant’s challenge is the undisputed fact that, by consequence of the adult adoption here, Charles DeWitt will receive far more from the trusts at issue than other members of his generation. There is more than a little element of inequity here, and as Justice Kelly observed in his dissent in Harrington, the net result is a trust beneficiary is given a power of appointment that “may be exercised by the simple expedient of adopting adults,” potentially doing violence to the settlor’s carefully crafted plan. Harrington, 311 Minn. at 413, 250 N.W.2d at 168 (Kelly J., dissenting). Yet, unlike Harrington, we are presented with a testamentary document that explicitly commands the equal treatment of adopted children and does not explicitly exclude Charles DeWitt.

While we are not unsympathetic to appellant’s argument, the long history of embracing adult adoption, combined with the lack of explicit exclusion of the children of Gwenyth, leads to the conclusion that the district court did not err in holding that Charles DeWitt was George Barber’s son and a beneficiary of the trust in question.

II

Appellants argue that the district court should have permitted an investigation into the circumstances of DeWitt’s adoption to determine if the adoption took place simply to thwart the settlors’ intent. Appellants’ argument presupposes that the settlors, in fact, intended to exclude Gwen-yth’s heirs. As discussed earlier, the evidence does not support this assertion.

Extrinsic evidence would be admissible to show an intentional omission. In re Hoigaard, 360 N.W.2d 360, 363 (Minn.App.1984), review denied (Minn. Mar. 21, 1985). But the investigation appellant seeks would not determine the intent of the set-tlors, but instead the intent of a beneficiary. The four corners of the testamentary documents reveal the settlors’ intention to include adopted children. The family’s extensive history of adult adoption suggests why they had such a strong preference for this inclusion. Regardless of DeWitt and Barbour’s motivation, there is no ambiguity concerning the settlors’ intent to include adopted children. Since there is nothing to be gained by the inspection, we affirm the district court’s refusal to permit it.

DECISION

The district court did not err in holding that Charles DeWitt was eligible to benefit from the trust as the adopted son of George Barbour. Further, because an examination of the circumstances surrounding DeWitt’s adoption would not shed any light on the settlors’ intent, the district court properly denied the trustees petition to conduct such an investigation.

Affirmed.

      . This trust was made up of half of the assets Lewis had a limited power to distribute. The other half of the assets would pass on to Henry and George Barbour upon Lewis’ death.