Merrill Lynch Trust Company, FSB, as trustee and executor, brought this action seeking construction of Margaret L. Scarbrough’s trust and will, naming Scarbrough’s heirs as respondents. The parties filed cross-motions for summary judgment, and the trial court ruled in favor of the heirs. In its appeal, the State, acting as parens patriae, argues that the trial court erred in granting summary judgment to the heirs.1 For reasons that follow, we agree and reverse. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.2 We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.3 So viewed, the evidence shows that Margaret L. Scarbrough executed her Last Will and Testament the “Will” and the Margaret L. Scarbrough Revocable Trust the “Trust” on June 25, 2002. With the exception of specific bequests of personal items and devises regarding her dog, the Will provided that Scarbrough’s estate would be distributed to the Trust. Item V of the Trust directs that upon Scarbrough’s death: A. The sum of Ten Thousand Dollars $10,000 shall be distributed to each of Scarbrough’s sisters, JEWEL DOUGLAS, DORIS BAILEY and JEAN BURHAM, who survive her. B. The sum of Fifteen Thousand Dollars $15,000 shall be distributed to my Scarbrough’s late husband’s niece, DOUGLAS EDGAR, if she survives Scarbrough. C. All assets contained in any account or accounts which Scarbrough may hold at the time of her death with Merrill Lynch, Pierce, Fenner & Smith Inc. shall be distributed to THE MARGARET, OWEN, AND PAULA SCARBROUGH FOUNDATION, INC. established by me during my lifetime. It is Scarbrough’s desire that the FOUNDATION employ the services of RANDY SMITH at Merrill Lynch, Pierce, Fenner & Smith Inc. to manage any such assets on behalf of the FOUNDATION. D. The balance of the property remaining in this Trust, after the specific bequests hereinabove, shall be distributed to THE MARGARET, OWEN, AND PAULA SCARBROUGH FOUNDATION, INC. Scarbrough served as trustee until the time of her death, after which the Trust provided that Susan B. Smith would become successor trustee.
Scarbrough died on August 12, 2002, before The Margaret, Owen, and Paula Scarbrough Foundation, Inc. the “Foundation” was established. On September 9, 2002, trustee Smith resigned her position and appointed Merrill Lynch Trust Company, FSB “Merrill Lynch” as successor trustee. Thereafter, on November 10, 2003, Merrill Lynch created “The Margaret, Owen, and Paul Scarbrough Foundation,” which provided that Merrill Lynch, as trustee, could make distributions for the use of “charitable organizations.”