Estate of Bolinger, Matter of

• Decision Date: 01 August 1997
• Docket Number: No. 97-113,97-113
• Citation: 943 P.2d 981,284 Mont. 114
• Parties: In the Matter of the ESTATE OF Harry Albert BOLINGER, III, Deceased.
• Court: Montana Supreme Court

Page 981

943 P.2d 981

284 Mont. 114

In the Matter of the ESTATE OF Harry Albert BOLINGER, III, Deceased.

No. 97-113.

Supreme Court of Montana.

Submitted on Briefs May 29, 1997.

Decided Aug. 1, 1997.

Charles F. Angel, Angel Law Firm, Bozeman, for Appellant.

John Frohnmayer, Bozeman, for Respondent Personal Representative.

Gregory O. Morgan, Bozeman, for Respondent Children.

NELSON, Justice.

This is an appeal from the December 18, 1996 Findings of Fact, Conclusions of Law and Order of the Eighteenth Judicial District Court, Gallatin County, determining by way of summary judgment that Decedent's will created a trust for the benefit of his children; terminating the trust in favor of the children and distributing the corpus of the trust to them; denying the application of Marian Bolinger (Marian) to be appointed personal representative of Decedent's estate; and appointing Deborah Reichman (Deborah) as personal representative. We reverse and remand for further proceedings consistent with this opinion.

Background

Harry Albert Bolinger, III, (Decedent), died March 23, 1995. Decedent's estate was initially commenced as an intestacy proceeding with Deborah being nominated by Decedent's three adult children (the children) and subsequently being appointed as personal representative. On July 13, 1995, however, H.A. Bolinger (Hal), father of Decedent, filed a petition for formal probate of will and a request to be appointed personal representative. The November 15, 1984 will so offered for probate devised all Decedent's estate to Hal, or, in the event that Hal predeceased Decedent, to Hal's wife (Decedent's step-mother), Marian. Specifically, the Fifth paragraph of the will, the language of which is at issue here, provides:

I intentionally give all of my property and estate to my said father, H.A. Bolinger, in the event that he shall survive me, and in the event he shall not survive me, I intentionally give all of my property and estate to my step-mother, Marian Bolinger, in the event she shall survive me, and in that event, I intentionally give nothing to my three children, namely: Harry Albert Bolinger, IV, Wyetta Bolinger and Travis Bolinger, or to any children of any child who shall not survive me. I make this provision for the reason that I feel confident that any property which either my father or my step-mother, Marian Bolinger, receive from my estate will be used in the best interests of my said children as my said beneficiaries may determine in their exclusive discretion.

The will nominated Hal as personal representative with Marian as the alternate. Hal subsequently renounced his right to serve as personal representative and suggested the appointment of Marian, who petitioned to be appointed on November 6, 1995. Decedent's children objected, contending, among other things, that the will was void as a matter of law because of undue influence or constructive fraud on the part of Hal, and, in the alternative, that the will created a trust on behalf of the children.

The children moved for summary judgment. Marian filed certain deposition and discovery responses and the court took those into consideration. The court did not enter any findings or conclusions as to undue influence or constructive fraud. However, following the receipt of additional briefs as to the construction of the Fifth paragraph of the will, and, after taking into consideration (over Marian's objection) an affidavit of John B. Folsom, Professor of English Emeritus, Montana State University, submitted by the children, the court ruled that the will, through the language in the Fifth paragraph created an express trust in favor of Decedent's children. Because Marian would be the trustee under the Fifth paragraph of the will and because of the admitted hostility between her and the children, the court also ruled that the trust should be terminated and the trust corpus distributed to them with Deborah continuing to act as the personal representative.

On appeal from this decision, Marian raises three issues:

1. Whether the District Court erred in its legal conclusion that the Fifth paragraph of Decedent's will created an express trust for the benefit of Decedent's three children;

2. Whether the District Court erred in considering the affidavit of John B. Folso;

3. Whether the District Court erred in its Findings of Fact Nos. 20 and 21 regarding an alleged partnership between Hal and Decedent.

We will address Issues 1 and 2 together. We will not address Issue 3 or the court's findings and conclusions as to that issue as Marian states in her brief on appeal that Issue 3 is the subject of other proceedings and that she merely brings the matter to our attention here so as to avoid any later waiver argument.

Standard of Review

We review a district court's grant of a motion for summary judgment de novo and apply the same criteria under Rule 56, M.R.Civ.P., as did the district court. Missoula Rural Fire Dist. v. City of Missoula (1997), 283 Mont. 113, ----, 938 P.2d 1328, 1329. We review the district court's findings of fact to determine whether they are clearly erroneous under the three-part test adopted in Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285, and we review the court's conclusions of law simply to determine whether the court's interpretation of the law is correct, Matter of Estate of Dern Family Trust (1996), 279 Mont. 138, 144, 928 P.2d 123, 127.

As with the judicial interpretation and construction of any instrument, the question of whether any particular language in a will creates an express trust, given the circumstances under which the trust was executed, is a question of law for the court to decide. See Klawitter v. Dettmann (1994), 268 Mont. 275, 281, 886 P.2d 416, 420. Here, accepting the facts found by the court, we conclude, nevertheless, that the District Court erred as a matter of law in its interpretation and construction of the effect of the language of the Fifth paragraph of Decedent's will.

Discussion

On the basis of the discovery responses and depositions provided as part of the summary judgment proceedings, the District Court found that both Hal and Marian believed that the language in the Fifth paragraph of Decedent's will created a trust (although in a second deposition Marian contended that she was mistaken in her initial impression in this regard). The court also found that Marian believed that at the time Decedent's will was drafted and executed, the children were minors and that Decedent used the language in the will to prevent his ex-wife from obtaining control over his estate. The court also agreed with Professor Folsom that, when read in its entirety, the Fifth paragraph of the will expressed Decedent's intention that all of his property must be used in the best interests of his children. The court found that the subject or res of the trust was all of Decedent's property and that the testator's purpose in creating the trust was to ensure that his assets would be used in his children's best interests. The court then concluded that Decedent having thus manifested his intention, and, on the basis of the criteria and authorities argued by the children, an express trust for the children's benefit was created under the Fifth paragraph of Decedent's will.

On appeal from the District Court's decision, Marian argues that proof of an express trust requires clear and convincing evidence that the trustor intended to create a trust and that devises, bequests and gifts that do not contain any restrictions on use or disposition of the property involved do not create an express trust. She contends that the use of "precatory" words by a testator, that is words which express only a wish or recommendation as to the disposition of property, are not sufficient to establish an intention to create a trust. She cites, among other cases, our decision in Stapleton v. DeVries (1975), 167 Mont. 108, 535 P.2d 1267, in support of her position in this regard. Furthermore, she maintains that the trial court erred in considering the affidavit of Professor Folsom because the question of whether given language in a will creates an express trust is one of law, and, as such, is not a proper subject of expert opinion.

In support of the District Court's decision, the children argue that where the testator manifests his intention to create a trust, no particular form of words or conduct is necessary, and that, providing that the trust or indicates with reasonable certainty the subject, purpose and beneficiary of the trust, an express trust is created. The children contend that, under the facts here and under these criteria, the language used by Decedent in the Fifth paragraph of his will created an express trust in their favor. They maintain that a trust must be construed in a manner so as to implement the trustor's intent and that, here, Decedent clearly expressed his intention that his property be used for the benefit of his children. The children cite a 1894 New York case, People v. Powers (N.Y.Sup.Ct.1894), 8 Misc. 628, 29 N.Y.S. 950, rev'd on other grounds, 147 N.Y. 104, 41 N.E. 432 (1895), for the proposition that a testator's expression of "confidence" that a bequest will be used to benefit another is sufficient to create a trust. Finally, as to the matter of the Folsom affidavit, Decedent's children maintain that the professor did not express an expert opinion on the ultimate legal question, but, rather, his opinion went simply to "the factual issue of the grammatical construction of [the Fifth paragraph]--not on whether the language creates an express trust."

At the outset, we note that there are differences in the statutory law in effect at the time that Decedent executed his will in November 1984 and when he died in March 1995. While the parties do not take any definitive position as to which body of statutory law applies in this case as to this first issue, the District Judge cites to the law in...