This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1799
In re the Estate of:
Leonard J. Marihart, Decedent
Filed June 8, 2015
Affirmed
Worke, Judge
Big Stone County District Court
File No. 06-PR-13-227
Paul A. Marihart, Duluth, Minnesota (pro se appellant)
Norman M. Abramson, Sheryl G. Morrison, Joy R. Anderson, Gray, Plant, Mooty &
Bennett, P.A., Minneapolis, Minnesota (for respondent Angeline Nosbusch)
Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s construction of a will, arguing that the
district court erred in considering extrinsic evidence because the will is unambiguous.
Appellant further argues that the district court should have awarded him reimbursement
for litigation expenses. We affirm.
DECISION
Ambiguity
Appellant Paul Marihart (Marihart) argues that the district court misconstrued the
will of his great-uncle, Leonard J. Marihart (the decedent). Marihart asserts that the
district court “erred by not reading [the decedent’s] [w]ill using [the decedent’s] words
and provisions.” In essence, Marihart argues that the language of the decedent’s will was
unambiguous and properly reflected the decedent’s intent in distributing his estate; thus,
the district court should have examined only the text of the will without considering
extrinsic evidence. Whether a will is ambiguous is reviewed de novo. In re Trust of
Shields, 552 N.W.2d 581, 582 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).
Marihart’s argument fails for two reasons. First, he may not bring this claim on
appeal because he argued the opposite below. Before the district court, Marihart sought
to interpret the language of the will so that he and his fellow objectors fit within that
language. Marihart now contends that the will is unambiguous and the language as
written should control. “It is elementary that on appeal a case will be considered in
accordance with the theory on which it was pleaded and tried, and a party cannot for the
first time on appeal shift his position.” Sec. Bank of Pine Island v. Holst, 298 Minn. 563,
564, 215 N.W.2d 61, 62 (1974) (quotation omitted); see Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988) (“A reviewing court must generally consider only those issues . . .
presented and considered by the [district] court”; “[n]or may a party obtain review by
raising the same general issue litigated below but under a different theory.” (quotation
omitted)).
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Second, the district court properly concluded that the decedent’s will was
ambiguous. “A latent ambiguity in a will . . . may arise . . . when the will contains a
misdescription of the object or subject, as whe[n] there is no person or thing in
existence.” In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985) (quoting In
re Pope’s Estate, 91 Minn. 299, 306, 97 N.W. 1046, 1048 (1904)). A district court may
consider extrinsic evidence to resolve an ambiguity. Id. The decedent’s will describes
bequests to his “children” when none exist; it describes bequests to his “descendants”
when none exist. A will that refers to nonexistent persons is ambiguous.
Marihart argues that Article 2.2, which would govern distributions to “children,”
and Article 3.2, which would govern distributions to “descendants,” are unambiguous
because the decedent intended them to be inoperative. Marihart contends that the
decedent intended Article 3.3, which governs distribution of any residuary, to control the
distribution of his estate. Marihart’s argument is unsupported by any legal authority. It
also stretches credulity: according to Marihart, not only did the decedent intentionally
add (or, at best, purposely leave in place) inoperative articles in his will, he also
intentionally added meaningless definitions that applied only to those inoperative articles.
In other words, the decedent added provisions about nonexistent persons and also
specifically defined particulars about those nonexistent persons: Article 6 of the will lays
out definitions, one of which applies only to Article 3.2. Marihart’s argument simply
cannot be sustained, particularly when a reasonable alternative explanation is that some
boilerplate language was employed in drafting (a possibility noted by an expert on wills
who testified at trial). In addition, some confusion existed as to whether the decedent
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intended to refer to his step-children—within the four corners of the will itself, it refers to
“my step-daughter” (legally proper because he had step-children) but also “my son-in-
law” (legally improper because he did not have a son-in-law).
The district court properly concluded that the will was ambiguous and
appropriately considered extrinsic evidence. Marihart has not challenged the district
court’s interpretation of the extrinsic evidence.
Litigation expenses
Marihart also argues that the district court should have awarded the objectors their
cost of objecting. A district court’s denial of litigation expenses is reviewed for abuse of
discretion. See In re Estate of Anderson, 654 N.W.2d 682, 688 (Minn. App. 2002),
review denied (Minn. Feb. 26, 2003) (referring to denial of attorney fees).
The district court’s judgment must be affirmed because Marihart points to no
expenses of any kind incurred as a result of this litigation. There is no basis in the record
upon which to justify any reimbursement. See In re Stisser Grantor Trust, 818 N.W.2d
495, 508 (Minn. 2012) (stating that “the complete lack of evidence supporting [the] claim
[for compensation of expenses] leaves us in no position to question the [district] court”).
Affirmed.
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In re the Estate of: Leonard J. Marihart, Decedent.
Combined Opinion