Estate of Kirk, Matter of
| Decision Date | 30 November 1995 |
| Docket Number | No. 21120,21120 |
| Citation | 907 P.2d 794,127 Idaho 817 |
| Parties | In the Matter of the ESTATE OF Muriel H. KIRK. In the Matter of the MURIEL H. KIRK FAMILY TRUST. Fred G. SALFEETY, Appellant/Appellant on Appeal/Cross-Respondent, v. A. Wesley SEIDEMAN, Respondent/Respondent on Appeal/Cross-Appellant. Boise, January 1995 Term |
| Court | Idaho Supreme Court |
Brauner, Coffel & Young, Caldwell; Hodsdon & Bergen, Kennebunk, Maine, for appellant. Stephen Y. Hodsdon argued.
Peterson Law Offices, Lewiston, for respondent. Philip E. Peterson argued.
This is an appeal by the decedent's nephew Fred G. Salfeety (Salfeety) from a district court decision affirming the magistrate court's order that the decedent's inter vivos trust was a valid, enforceable trust and that the various specific gifts should be delivered to the designated persons and organizations. This action was initiated upon the trustee's filing of the Petition for Construction of Trust. We affirm the magistrate's order.
The decedent in this case, Muriel H. Kirk (Mrs. Kirk), died on May 20, 1992, at the age of 85. Mrs. Kirk apparently was a highly intelligent and articulate woman, and a lawyer who practiced for a period of time in Oklahoma. She also became a realtor, traveled extensively, and flew a plane, and lived a busy life in Boise. The testimony of witnesses indicated that she had a direct and take-charge manner. Mrs. Kirk had one daughter, Diana Kirk (Diana), who preceded her in death.
In the years before her death, Mrs. Kirk executed seven instruments. The first such document executed by Mrs. Kirk was her Last Will and Testament (the Will) on December 11, 1989. On the same day she executed the second instrument, a revocable trust agreement entitled the Muriel H. Kirk Family Trust (the Trust) with herself as trustee. She named West One Bank, N.A. Trust Department (the Bank) as successor trustee upon her death and as personal representative in her Will. The Trust was registered in Ada County and was funded. The Will pours over into the Trust.
The third instrument was the First Amendment to the Trust, executed by Mrs. Kirk on June 7, 1990. In that amendment, she eliminated the entire Section 4.5 of the Trust governing termination of the Trust because her daughter Diana had died on December 13, 1989. This change eliminated two of the three beneficiaries named in Section 4.3 of the original Trust, Diana and the Assistance League of Boise, Idaho. This left the remainder of the Trust assets to the Milton Academy of Milton, Massachusetts as sole beneficiary in her daughter's memory. Diana had attended school there. Mrs. Kirk caused the First Amendment to be delivered to the Bank.
At the same time, Mrs. Kirk executed the fourth instrument, a codicil to her Will. The codicil confirmed and republished the remaining portions of her Will.
On October 18, 1990, Mrs. Kirk executed the fifth instrument, the Second Amendment to the Trust. The relevant effect of the Second Amendment was to eliminate, in Section 4.4, the sole remaining beneficiary of the Trust, the Milton Academy. The Amendment stated that the Academy had introduced Diana to smoking which ruined her life. Apparently recognizing that this elimination left a gap in her estate plan, Mrs. Kirk included in Section 4.3 of the Second Amendment, the following:
After the death of the Grantor, the Trustee shall hold, manage and control the property comprising the Trust estate for beneficiaries to be named in an attached sheet, which will be added to from time to time.
In addition to Nile Clark and Allen Derr of Boise, who were named in the original Trust as co-trustees, Mrs. Kirk named Donna Shepard and Joyce Denning as co-trustees in the Second Amendment to the Trust.
The Second Amendment also provided in Section 7.1 that the Bank, in consultation with Clark and Derr, was to have the final decision on the sale of real estate, and that Donna Shepard was to handle the sale of all of Mrs. Kirk's personal property, consulting with Joyce Denning. Mrs. Kirk commented in the amendment that . A signed original of the Second Amendment was delivered to the Bank.
The sixth instrument is a one page typed document dated October 18, 1990, and signed by Mrs. Kirk (the possession list). The first paragraph of this document states: "Possessions I would like some of my friends to have when I am gone and they can no longer enjoy my company". This possession list left gifts of personal items to three people, a gift of oil holdings to the Assistance League and a direction to convert certain items to cash to be applied to a memorial garden at Boise's Botanical Garden "for Judge Allan Shepard and a Memorial Garden for Diana Dorothy Kirk". This document was delivered to the Bank along with the Second Amendment to the Trust.
Following Mrs. Kirk's execution and delivery of the Second Amendment, Respondent A. Wesley Seideman (Seideman), a trust officer at the Bank, and the person at the Bank with whom she had been dealing, wrote a letter to Mrs. Kirk on October 29, 1990, expressing his concern about her inclusion of the income from the oil and gas leases within the possession list. He apparently had also expressed concern to Mrs. Kirk during at least two conversations he had with her in early 1991, that the Trust was incomplete, i.e., that it lacked distributive provisions. Seideman's concern was that while the Trust adequately disposed of tangible personal property, he believed there to be a question as to the residual estate.
The seventh instrument before the Court is an undated, handwritten document (the Script), which attempts to effectuate a testamentary disposition of her property. The Script was written on the torn-off receipt section of a Medicare check, and was stapled to the Trust instrument to which it pertained, the Second Amendment. The document begins: "If anything happens to me on the trip to La Jolla, the following things to go to the named people--". The Script states: "Donna and Joyce will take plenty of time to sell other property at proper prices [no rushed sale Brooks!] then 1/3 goes to law chair for Donna's Allen-- 2/3 to Botanical Garden for English garden dedicated to Muriel and Diana". The trial court found the Script to be in Mrs. Kirk's handwriting. Unlike all six of Mrs. Kirk's instruments described above, the Script was not delivered to the Bank.
Mrs. Kirk did drive to La Jolla, it is presumed sometime in March 1992, and returned without incident. She died quite unexpectedly not long after her return on May 20, 1992. After her death, her Will and codicil, the Trust and amendments and the Script were found in a binder in her home.
On November 23, 1992, Seideman, in his capacity as the personal representative of Mrs. Kirk's estate, and co-trustee of the Trust, filed a petition for construction of the Will and the Trust, urging that the Script be found to be a valid amendment to the Trust and that the estate be distributed in accordance with the Script. Thereafter, Salfeety filed an answer and protest to the Seideman's petition.
Salfeety was Mrs. Kirk's nephew, her sister's son. He was located in Maine by an heir search ordered by the Bank in an effort to give notice in the probate of Mrs. Kirk's estate. Although Salfeety is apparently Mrs. Kirk's sole heir and closest living relative, the two barely knew each other. During his testimony at the trial before the magistrate court, Salfeety described a very remote connection to Ms. Kirk. He testified that he first met her at his mother's funeral, and before that he had not even had much contact with his mother. His parents were divorced and he had been raised by his father's family. He stated that Mrs. Kirk was in a different socio-economic bracket and that any The magistrate construed the validity and legal effect of the various documents as urged by Seideman. Salfeety appealed to the district court. The district court affirmed the magistrate's decision, although on different grounds. The district court ruled that the Idaho mortmain statute, I.C. § 15-2-615, was unconstitutional on grounds of violation of equal protection. Salfeety appeals and Seideman cross-appeals.
[127 Idaho 822] contact was up to her. He had not seen her or had any contact with her for twenty to thirty years.
A. Whether the district court, while correctly deciding that the Script violates the Idaho mortmain statute I.C. § 15-2-615, erred in determining that statute to be unconstitutional due to a violation of equal protection.
B. Whether the magistrate erred in admitting certain extrinsic and parol evidence.
3. Whether the magistrate erred in admitting and relying upon Mrs. Kirk's prior wills for any purpose other than to show her past adherence to formalities required in the execution of testamentary instruments, and whether the district court erred, while correctly recognizing the magistrate's inappropriate admission of those prior wills, in not ordering appropriate sanctions or relief from such erroneous admission.
C. Whether the magistrate erred in finding or concluding that Mrs. Kirk amended the amendatory procedure of the Trust as prescribed in Article IX Section 9.1 of the Trust.
D. Whether the magistrate erred in determining the Script to be a valid amendment to the Trust:
1. By finding that Mrs. Kirk complied with all of the requirements required by the Trust instrument for its valid amendment;
2. By concluding that the doctrine of incorporation by reference, as codified in I.C. § 15-2-510, is inapplicable to the Script, or that, in any event, the Script...
To continue reading
Request your trial
-
Stuart v. State Of Idaho
... ... for him to make a persuasive case for early release, but that fact alone cannot end the matter for ex post facto purposes.” ... Id. at 508-09, 115 S.Ct. at 1603, 131 L.Ed.2d at 596 ... ...
-
Steel Farms, Inc. v. Croft & Reed, Inc.
... ... , Inc., 108 Idaho 524, 700 P.2d 567 (1984) controlling, the court held that, as a matter of law, the irrigation equipment was a fixture. Finally, the court held that issues of fact ... court in determining the intent of the drafter of a document if an ambiguity exists." In re Estate of Kirk, 127 Idaho 817, 824, 907 P.2d 794, 801 (1995) (citing Hall v. Hall, 116 Idaho 483, 484, ... ...
-
Wolford v. Montee
... ... terms of those notes Appellants were in default and Wolford was entitled to judgment as a matter of law. Appellants also state that several of their motions were erroneously denied, including a ... and the district court therefore erred by excluding parol evidence of intent."); In Re Estate of Kirk , 127 Idaho 817, 824, 907 P.2d 794, 801 (1995) ("Parol evidence may be considered to aid a ... ...
-
Porcello v. Estate
... ... The Estates lack of objection to the admission of parol evidence at trial does not constitute a waiver of their ability to argue this matter on appeal. The district court was clearly aware of the issue at summary judgment. The Estates argued that the rule against parol evidence barred the ... See Kessler v. Tortoise Dev., Inc. (Kessler I), 130 Idaho 105, 108, 937 P.2d 417, 420 (1997) ; and In re Estate of Kirk, 127 Idaho 817, 824, 907 P.2d 794, 801 (1995). In Kessler I, for example, this Court found that an ambiguity existed where three provisions in a ... ...