In re Estate of Kurrelmeyer

• Decision Date: 03 March 2006
• Docket Number: No. 04-347.,04-347.
• Citation: 2006 VT 19,895 A.2d 207
• Parties: In re ESTATE OF Louis H. KURRELMEYER.
• Court: Vermont Supreme Court

895 A.2d 207

2006 VT 19

In re ESTATE OF Louis H. KURRELMEYER.

No. 04-347.

Supreme Court of Vermont.

March 3, 2006.

COPYRIGHT MATERIAL OMITTED

Karl W. Neuse of Neuse, Smith & Venman, P.C., Middlebury, for Plaintiffs-Appellees Ellen L. Kurrelmeyer and Ellen L. Kurrelmeyer, Executrix of the Estate of Nancy Kurrelmeyer.

James W. Runcie of Ouimette & Runcie, Vergennes, for Plaintiff-Appellee Louis H. Kurrelmeyer, Jr.

Thomas F. Heilmann and Wendy L. Fuller of Heilmann, Ekman & Associates, Inc., Burlington, for Defendant-Appellant Martina Kurrelmeyer.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and BURGESS, District Judge, Specially Assigned.

¶ 1. BURGESS, District Judge, Specially Assigned.

Martina Kurrelmeyer appeals an order of the Chittenden Superior Court declaring void, as a matter of law, the revocable inter vivos trust she created under her husband's durable power of attorney prior to his death. Mr. Kurrelmeyer's surviving children claimed the power of attorney did not grant authority to create a trust and that transfer of Mr. Kurrelmeyer's property to the trust constituted unauthorized self-dealing and a breach of Martina Kurrelmeyer's fiduciary duty as her husband's agent. We reverse the superior court's determination that the trust is void as a matter of law, and remand for further proceedings to determine whether Martina Kurrelmeyer's actions breached her fiduciary duty of loyalty as her husband's agent.

¶ 2. The undisputed facts are summarized as follows. In 1996, Louis Kurrelmeyer executed two durable general powers of attorney to appoint his wife, Martina Kurrelmeyer, and his daughter, Nancy Kurrelmeyer, as attorneys-in-fact. Louis Kurrelmeyer was competent at the time he executed the powers of attorney. In December of 2000, Martina, pursuant to her powers under the durable power of attorney, executed a document establishing the "Louis H. Kurrelmeyer Living Trust," with herself and Nancy as co-trustees. Days after she created the trust, Martina transferred certain real estate owned by her husband, the "Clearwater" property, to herself and Nancy as co-trustees of the trust. At the time of the creation of the living trust and the transfer of the Clearwater property, Louis Kurrelmeyer was no longer competent. Mr. Kurrelmeyer died testate a year later, and Martina was appointed executrix of his estate.

¶ 3. Louis Kurrelmeyer's last will and testament, executed in 1980, contained a specific provision for the Clearwater property. Under the will, Martina would take a life estate in the property, with responsibility for taxes and upkeep, and upon her death the property would pass to Mr. Kurrelmeyer's surviving children as joint tenants with rights of survivorship. In contrast, the terms of the trust provide Martina additional rights with regard to the property. Under the terms of the trust, Martina may occupy the home as long as she wishes and the trust is permitted to pay the expenses on the property should she fail to do so. The trustees would be required, however, on Martina's unilateral request, to sell the home, with the sale proceeds to be used either to purchase another home for Martina or, alternatively, to be added to the trust principal. Additionally, the trust provides that all income from the trust property would be paid to Martina, as well as so much of the principal as the trustees deem necessary and proper for her support. Upon Martina's death, the trust principal would be distributed to Louis's children, if they survived him, with any deceased child's share to be distributed to that child's descendants or held in trust until such descendants reached the age of twenty-five. The trust requires that there be at least one other trustee serving so long as Martina is serving as a co-trustee, and the co-trustees must act by mutual agreement.

¶ 4. During the probate administration of Louis Kurrelmeyer's estate, his son, Louis Kurrelmeyer Jr., objected to the exclusion of the Clearwater property from the inventory completed by Martina Kurrelmeyer. Claiming that Martina exceeded her authority in creating the trust, Louis Jr. asked the probate court to set aside the trust and include the Clearwater property in the probate estate to be distributed in accordance with Mr. Kurrelmeyer's will.¹ The probate court upheld the trust, and the children appealed to the superior court.

¶ 5. Martina Kurrelmeyer moved for summary judgment, arguing the creation of the trust and transfer of the Clearwater property to the trust were authorized under the broad authority granted to her by the durable power of attorney. The children moved for a judgment in their favor, arguing that the power of attorney did not authorize creation of a revocable trust, that the transfer of the Clearwater property to the trust was a breach of Martina's fiduciary duty because it constituted self-dealing, and that the transfer violated the gift-giving proscription of the power of attorney.

¶ 6. The superior court reversed the probate court's order. Granting summary judgment for the children, the superior court concluded that the power of attorney did not authorize Martina to create a trust. The court found the power of attorney ambiguous on the trust issue, and narrowly construed the language to authorize only maintenance of, and additions to, trusts already existing when the power of attorney came into being. The superior court also opined that, because the appointment of Martina as attorney-in-fact did not authorize her to make a will on behalf of the principal, she was without authority to convey his property in trust in a manner that would "alter" his existing will. Martina appealed, complaining that the superior court erred in applying a strict construction analysis rather than recognizing Mr. Kurrelmeyer's intention to make Martina his attorney-in-fact for general purposes, including trust creation, as is evident, she argues, from the plain language of the power of attorney.

¶ 7. On appeal from a grant of summary judgment, we apply the same standard as the trial court. Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 9, 177 Vt. 287, 865 A.2d 350. Summary judgment is appropriate where the undisputed facts demonstrate either party is entitled to judgment as a matter of law. V.R.C.P. 56(c)(3). Where the parties agree there are no contested issues of fact, the question of whether either party is entitled to judgment as a matter of law is reviewed de novo. Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996). Our review of questions of law is nondeferential and plenary. Wesco, Inc., 2004 VT 102, ¶ 9, 177 Vt. 287, 865 A.2d 350.

I.

¶ 8. We first address Martina's claim that the trial court erred in concluding as a matter of law that the power of attorney did not authorize her to create a trust on Louis Kurrelmeyer's behalf. We disagree with the superior court's characterization of the power of attorney as ambiguous, and find that the express language of the power of attorney authorized the attorney-in-fact to create a trust. The trial court invoked a doctrine of strict construction, relied upon in some jurisdictions, to seemingly resolve any arguable ambiguity against the attorney-in-fact claiming delegation. See King v. Bankerd, 303 Md. 98, 492 A.2d 608, 611 (1985) (observing that "one well settled rule is that powers of attorney are strictly construed as a general rule and [are] held to grant only those powers which are clearly delineated" (internal quotations omitted) (alteration in original)). We are not persuaded that strict construction, rather than a construction to effect the principal's intent, is a preferred method of determining the scope of a power of attorney. See Restatement (Second) of Agency § 34 cmt. h (1958) (noting that while it is often stated that formal instruments denoting an agent's authority should be strictly construed, "[t]here should be neither a `strict' nor a `liberal' interpretation, but a fair construction which carries out the intent as expressed"). Determining the principal's intent is acknowledged as the primary objective, even in strict construction jurisdictions: "Although our predecessors recognized this rule [of strict construction] over a century ago ... they were careful to note that the rule of strict construction `cannot override the general and cardinal rule' that the court determine the intention of the parties." King, 492 A.2d at 611 (citation omitted). Accordingly, we will not apply a rule of narrow construction to particular words and phrases used in the power of attorney, but will examine the express terms and the context of the instrument as a whole to give effect to the principal's intent.

¶ 9. This approach is consistent with our analysis in Schall v. Gilbert, 169 Vt. 627, 741 A.2d 286 (1999) (mem.), in which we examined whether the scope of a power of attorney was limited, or "special," as opposed to broad, or "general":

A power of attorney is a written authorization used to evidence an agent's authority to act on behalf of another person. It is often characterized as general or special. The more specific a power of attorney is concerning performance of individual acts, the more the agent is restricted from executing acts beyond the specific authority granted. Further, the Restatement (Second) of Agency § 3 cmt. a (1958) states:

In determining whether an agent is a general agent or a special agent, the number of acts to be performed in accomplishing an authorized result, the number of people to be dealt with, and the length of time needed to accomplish the result are the important considerations. Continuity of service rather than the extent of discretion or responsibility is the hallmark of the general agent.

Id. at 630, 741 A.2d at 289 (citations omitted).

¶ 10. To determine whether the power of attorney authorized Martina to create a trust, we look to Mr. Kurrelmeyer's "written authorization," entitled "Durable General Power of Attorney." As its title...