Estate of Klein, Matter of, 880138

• Decision Date: 09 January 1989
• Docket Number: No. 880138,880138
• Citation: 434 N.W.2d 560
• Parties: In the Matter of the ESTATE OF J.V. KLEIN, a/k/a John V. Klein, Deceased. John V. KLEIN, Jr. and Gladys Berger, Petitioners and Appellants, v. George H. KLEIN and Donna Mae Klein, Respondents and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 560

434 N.W.2d 560

In the Matter of the ESTATE OF J.V. KLEIN, a/k/a John V.

Klein, Deceased.

John V. KLEIN, Jr. and Gladys Berger, Petitioners and Appellants, v. George H. KLEIN and Donna Mae Klein, Respondents and Appellees.

Civ. No. 880138.

Supreme Court of North Dakota.

Jan. 9, 1989.

Peterson Law Office, Beach, and Tipp, Frizzell & Buley, P.O. Box 3778, Missoula, Mont., for petitioners and appellants, argued by Thomas W. Frizzell. Appearance by Jon F. Kroke.

Howe, Hardy, Galloway & Maus, Dickinson, for respondents and appellees, argued by Albert J. Hardy.

MESCHKE, Justice.

John V. Klein, Jr., (John) and Gladys Berger appealed from a county court judgment construing the will of John V. Klein, Sr., (J.V.) and ordering distribution of J.V.'s estate. We affirm.

The relevant part of J.V.'s will said:

"I give, devise, and bequeath All [sic] of my property, whether real, personal and mixed, of whatsoever nature or wheresoever located, in the State of North Dakota, and in compliance with deeds on record in the Register of Deeds Office in any County in North Dakota, to be bequeath [sic] in the name of my son, George H. Klein and his wife, Donna Mae Klein, to be theirs and in their name only, for the rest of their lives, or in the event of the death of either George H. Klein or Donna Mae Klein, then that interest shall be passed on to their children, namely, Ronald Klein and JoAnn Lowman, in equal interests.

"In making this Last Will and Testament, I have overlooked none who is to inherit my property at the time of my death, however, in case anyone whosoever contest or contests this Will, will be forever debarred from having any interest in my Will or in my property, whether real, personal and mixed." [Emphasis added.]

John, Gladys, and George were J.V.'s children. Donna was George's wife.

The trial court concluded that the will was ambiguous about the extent of the interest in J.V.'s property that George and Donna were to receive. After considering extrinsic evidence, the trial court concluded that it was J.V.'s intent to leave all of his property to George and Donna "in fee simple, as tenants in common." Only John and Gladys appealed; Ronald Klein and JoAnn Lowman did not.

On appeal John and Gladys asserted that the trial court erred in construing the will. They argued that George and Donna received only a life estate in J.V.'s property under the will and that upon their deaths the remainder would be inherited by J.V.'s heirs under the laws of intestate succession.

Whether a will is ambiguous is a question of law for the court to decide. In Re Estate of Johnson, 214 N.W.2d 112 (N.D.1973). A will provision is ambiguous if there is more than one reasonable interpretation of it. In Re Tonneson's Estate, 136 N.W.2d 823 (N.D.1965).

The extent of the interest devised to George and Donna is not clearly described by the language of the will. The phrase "for the rest of their lives" could reasonably be, and ordinarily would be, construed as giving George and Donna a life estate. However, there are other aspects of this will that make J.V.'s intent unclear.

First, the will does not clearly attempt to give a remainder interest upon expiration of a life estate. Rather, the "in-the-event" gift to Ronald and JoAnn can be regarded as an alternative disposition to prevent lapse of either part of the disposition to George and Donna. Second, following the language of devise to George and Donna, the will says "in the event of the death of either George H. Klein or Donna Mae Klein, then that interest shall be passed on to their children, ..." [Emphasis added.] If J.V. intended to give only a life estate to George and Donna, there would be no interest to be passed to the children if George and Donna predeceased J.V. These different possibilities show the correctness of the trial court's conclusion that J.V.'s will was ambiguous.

The purpose of construing a will is to ascertain the intent of the testator. Where the...