NO. 94-238
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN THE MATTER OF THE ESTATE OF
KARL F. LINDGREN,
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John T. Jones, Moulton, Bellingham, Longo & Mather,
Billings, Montana
For Respondent:
Gene A. Picotte, Helena, Montana
Submitted on Briefs: October 13, 1994
~ ~ ~ i d November 23, 1994
~ d :
Filed:
Justice Fred J. Weber delivered the Opinion of the Court
his is an appeal from a probate order issued by the Fifth
Judicial District Court, Jefferson County. We reverse in part and
affirm in part.
We consider the following issues on appeal:
I. Did the District Court err in ordering the Trustee
to invade the Trust estate to the extent of paying one
half of Anna D. Lindgren's monthly health care and
housing costs?
11. Did the District Court err in denying the
Conservator's request for reimbursement of the nursing
care and housing costs that Anna D. Lindgren's
conservatorship incurred prior to June 1, 1994?
111. Did the District Court err in ordering the Trustee
to invade the Trust estate to pay one-half of Anna D.
Lindgren's burial and funeral expenses?
IV. Did the District Court err in denying Conservator's
request for attorney fees?
Karl F. Lindgren (hereinafter Decedent) died on ~ p r i l 15,
1993, in Lewis & Clark County, Montana. Decedent's will
established a Trust in which his surviving spouse, an Alzheimer
sufferer, is the sole beneficiary (hereinafter referred to as
Beneficiary.). The Trustee of the Trust is Decedent's cousin,
Gladys E. Tellessen (hereinafter referred to as Trustee.) The
purposes of the Trust are to "provide for and assure so far as
possible, the generous care and supportw of Beneficiary during her
lifetime and to pay for her burial and funeral expenses.
On August 2, 1993, the Thirteenth Judicial District Court,
Yellowstone County, appointed Patsy A. Martin (hereinafter referred
to as Conservator), daughter of Beneficiary, to serve as the
guardian and conservator for Beneficiary, due to her deteriorating
condition. Beneficiary resides in a Billings nursing home and
incurs $3,000 per month nursing care expenses. Conservator has
requested that the Trustee of the Testamentary Trust assist the
conservatorship by providing for the monthly care of Beneficiary.
Trustee has refused all such requests for aid because Beneficiary
has failed to establish a financial need.
Conservator petitioned the probate court for an order
requiring the Trustee of Karl Lindgren's Testamentary Trust to
distribute income and/or principal from the Trust to pay for
Beneficiary, Anna D. Lindgren's nursing care, medications, and
expenses. Also, the petition sought reimbursement for the funds
Conservator had expended on the care of Beneficiary since the death
of Mr. Lindgren.
The court issued its findings and order on April 22, 1994.
That order ruled that the Trustee must invade the Trust to pay for
one-half of Anna Lindqren's monthly health care and housing costs
and one half of her burial and funeral costs. Also, in that order
the court denied the request for reimbursement of Beneficiary's
expenses from the time period of her husband's death to June 1,
1994. Finally, the court denied Conservator's request for attorney
fees .
Conservator filed a Notice of Appeal on May 18, 1994; she
amended, and refiled the appeal on May 24, 1994. Trustee filed a
Notice of Cross-Appeal on June 1, 1994.
Did the District Court err in ordering the Trustee to invade
the Trust estate to the extent of paying one half of Anna D.
Lindgren's monthly health care and housing costs?
Conservator argues that the wording of the Trust makes it
clear that the Trust was supposed to assume the expense of
Beneficiary's care and support following the death of Karl
Lindgren. Conservator contends that the Trustee abused her
discretion by refusing all requests for help.
The respondent Trustee argues that the word "Necessary" in the
Trust means that Beneficiary must expend her own funds before the
Trustee invades the Trust.
The following are the pertinent provisions of the Will:
1. The term of this Trust is from the time of my death
to the time of death of my wife, ANNA DELL LINDGREN. If
said wife shall not survive me, this Trust shall not come
into existence.
2. The sole beneficiary of this Trust is my said wife,
ANNA DELL LINDGREN.
3. The purposes of this Trust are to provide for and
assure, so far as possible, the generous care and support
of my said wife, ANNA DELL LINDGREN, after my death for
so long as she shall live and to provide for funeral,
burial, and any other expenses attendant upon and
resulting from her death.
4. The Trustee shall, in her, his or its sound
discretion, pay to or apply for my said wife as much of
the Trust income and Trust principal as Trustee deems
necessary for her support, care and health during her
life time. The discretion of the Trustee shall be
exercised liberally in favor of my said wife, it being my
intention that she shall have, in addition to the
necessities, a reasonable number of the luxuries of life,
if she desires them.
5. The Trustee shall have all of the powers, duties, and
obligations set forth and described in Sections 72-21-101
through 72-21-206, MCA. Any other powers, obligations
and duties in any other applicable laws of the State of
Montana are also conferred upon the Trustee.
6. Upon the death of my said wife after my death, this
Trust shall terminate and the Trustee shall, with
deliberate speed, convert the Trust property entirely to
cash, and after payment of all debts and obligations of
the Trust, if any, distribute absolutely and
unconditionally all thereof to the beneficiaries and in
the amounts and proportions designated and determined by
the provisions of Paragraph SEVENTH, hereinafter.
This Court reviews a district court's findings as to whether
they are clearly erroneous; that is whether they are supported by
substantial evidence, whether the court correctly apprehended the
evidence, and despite the satisfaction of the first two concerns,
whether we are still left with a firm conviction that a mistake has
been made. Tonack v. Montana Bank of Billings (1993), 258 Xont.
247, 854 P.2d 326. The Supreme Court's review of a district
court's conclusions of law is simply whether the conclusions are
correct. Weber v. Rivera (1992), 255 Mont. 195, 841 P.2d 534.
The court found that the discretionary provisions of the Trust
justified the Trustee in denying Conservator's request for
contribution to Beneficiary. The court found that there was no
"needw for the Trust to be invaded. Having said this, however, the
court went on to determine that the true spirit and intent of the
will had been contradicted. The court then charged the Trust with
one half of Beneficiary's future expenses and one half of her
future funeral and burial expenses. The court denied retroactive
contributions from the Trust concerning Mrs. Lindgren's care upon
her husband's death and also denied Conservator's request for
attorney fees.
The District Court specifically points to the word "need" and
roots its decision there. The Court should determine the
testator's intent, the ruling concern, by analyzing the will in its
entirety, not select provisions on their own. Matter of Estate of
Evans (1985), 217 Mont. 89, 704 P.2d 35. In analyzing the
entire Trust as a whole, we are left with the firm conviction that
Karl Lindgren carefully worded the instrument to carry out the
specific purpose of caring for his wife from the time of his death
to her own death. If the wording of the will is clear and
unambiguous, the court shall not consider extrinsic evidence or the
circumskances surrounding the execution of the will. Matter of
Estate of Greenfield (1988), 232 Mont. 357, 757 P.2d 1297.
What the District Court did was to set the word "need" above
the intent of the Trust. That one word cannot be construed in such
a way as to negate or even diminish the sole purpose of the Trust
which was to provide Mr. Lindgren's beloved wife with monetary
support for both necessities and luxuries during her life and for
funeral and burial expenses upon death. We will not interpret the
liberal Trust language by way of a limited reading of the word
"necessary," referred to by the court as "need." The Trust does
not itself contain any limiting language. While the Trust states
that the Trustee has sound discretion it also directs the Trustee
to exercise that discretion "liberally" in favor of Mrs. Lindyren.
There is nothing in the record to indicate that the Trustee adopted
this liberal attitude toward the care of the Beneficiary. The
Trustee denied every request for help from Mrs. Lindgren's
Conservator. The denial was not in compliance with the purposes of
the Trust.
The Trustee would have us determine that Mrs. Lindgren nust
expend or dispose of her personal estate before the Trust can be
invaded. The Trust does not provide for the expenditure of
Beneficiary's estate before any payments are to be made from the
Trust. We will not read into the instrument this limitation. Nor
will we consider case law from other jurisdictions when the Trust
instrument itself is clear.
We can reach no other conclusion than that the Trust itself is
clearly worded to provide for Mrs. Lindgren's total care from the
time of Mr. Lindgren's death until Mrs. Lindgren's own death.
Therefore, it is the Trust itself that is solely liable for Mrs.
Lindgren's care from the day her husband died. We hold that the
District Court erred in ordering the Trustee to invade the Trust
estate to the extent of paying one half of Anna D. Lindgren's
monthly health care and housing costs.
We reverse the court order requiring the Trust to pay for only
half of Mrs. Lindgren's expenses and direct the District Court to
enter an order for the Trustee to pay for Mrs. Lindgren's total
living and medical expenses.
II
Did the District Court err in denying the Conservator's
request for reimbursement of the nursing care and housing costs
that Anna D. Lindgren's conservatorship incurred prior to June 1,
1994?
In its April 22, 1994 order the court directed the Trustee to
pay for one half of Mrs. Lindgren's expenses beginning after June
1, 1994. Appellant argues that she should be reimbursed for the
money she spent from her mother's personal finances on her mother's
care before June 1, 1994. Respondent merely argues that Mrs.
Lindgren's funds must be consumed before the Trust begins.
Again, we emphasize that the clear language of the Trust
states that it begins "from the time of my death to the time of
death of my wife, ANNA DELL LINDGREN." Therefore, the testator's
clear intent is that the Trust begin at his death. Because the
Trustee failed to pay for any of Mrs. Lindgren's expenses in the
manner in which the Trust directs, the court erred in refusing to
reimburse Mrs. Lindgren's Conservator.
We reverse the court's refusal to reimburse the Conservator
for funds expended heretofore on Mrs. Lindgren's care. The court
is directed to order the Trustee to reimburse the Conservator for
all monies already spent for the care of Mrs. Lindgren from the
date of Mr. Karl Lindgren's death.
111
Did the District Court err in ordering the Trustee to invade
the Trust estate to pay one-half of Anna D. Lindgren's burial and
funeral expenses?
In addition to requiring the Trust to pay for half of Mrs.
Lindgren's expenses, the court ordered the Trust to pay for half of
her burial and funeral expenses. Appellant argues that the Trust
provided for the complete payment of Mrs. Lindgren's funeral and
burial expenses.
According to paragraph 3 of the Testamentary Trust, the
Trustee has no discretion in paying Mrs. Lindgren's complete
funeral and burial expenses. We hold that the District Court erred
in splitting the cost between the parties. We reverse the District
Court's ruling on this issue and direct the court to issue an order
that the Trust will be fully responsible for all burial and funeral
expenses.
IV
Did the District Court err in denying Conservator's request
for attorney fees?
Appellant argues that the court should have awarded her
attorney fees because she had to file this action in order to force
the Trust to begin its prescribed duties. Respondent argues that
in absence of a special statute, or stipulation of the parties, or
rule of court, that attorney fees cannot be awarded.
The District Court denied attorney fees. In this, the court
was correct. The longstanding rule in Montana is that, absent
statutory or contractual authority, attorney fees will not be
awarded. Goodover v. Lindey's (1992), 255 Mont. 430, 843 P.2d 765.
There is no statutory or contractual requirement for an award of
attorney fees.
In certain instances in which bad faith or malicious behavior
are involved, this Court has made an equitable award of attorney
fees. Goodover, 255 Mont. at 446, 843 P.2d at 774-75. However,
this equitable consideration is only invoked infrequently.
Goodover, 255 Mont. at 446, 843 P.2d at 775. The record does not
show either bad faith or malicious behavior. We affirm the denial
of attorney fees.
We Concur: ,/
Justices
~usticeTerry N. Trieweiler specially concurring.
I concur with the result of the majority opinion, but for
reasons other than those set forth in that opinion.
Paragraph 4 of Karl Lindgrenlstestamentary trust directed the-
trustee to pay from trust income and principle those erpcrses
"necessarv for her [knnals] support, care, and health during her
lifetime." (Emphasis added.) The issue in this case is simply
whether the term "necessary" describes the type of expenses to be
paid for, or Anna's financial need that those expenses be paid by
the trust.
This issue has been resolved in other jurisdictions based on
reasoning and precedent that I conclude is persuasive.
In G o ( & ' V. Churtdky (Kan. 1991), 811 P. 2d 1248, the decedent
established a testamentary trust for the benefit of his surviving
spouse. In that trust, he provided that net income of the trust
was to be paid to the beneficiary "'as may be necessary for her
support, health and maintenance. I " Godfrey, 811 P.2d at 1250
(emphasis added). The Supreme Court of Kansas was asked to decide,
as we are, whether the beneficiary was entitled to the trust income
for her support, health, and maintenance without regard to her
persona1 income. The remainderman named in the will argued that
the term "necessary" limited expenditures from trust income to
"only those expenses which exceeded [the beneficiary's] personal
income." G o d f , 811 P.2d at 1251. However, in concluding
otherwise, the Supreme Court of Kansas set forth the following
rules of interpretation:
Whether a trustee can consider the personal income
of a trust beneficiary is to be determined from the
language of the instrument and surrounding circumstances.
See Bogert, Trusts and Trustees § 811, p. 229 (rev. 2d
ed. 1981). Where the trust settlor manifests an
intention that the trust property be applied to the
beneficiary's support only if and to the extent the
beneficiary is in actual need, then the beneficiary is
not entitled to support from the trust fund if other
sufficient resources are available. See Dunklee v. Kettering,
123 Colo. 43, 46, 225 P.2d 853 (1950); First NationalBankof
Catawba Cortntyv. E h , 55 N.C.App. 697, 704, 286 S.~.2d 818
(1982). See generally 2 Scott on Trusts 128.4
(Fratcher 4th ed. 1987). On the other hand, where a
settlor directs the trustee to pay the beneficiary so
much as is necessary for support and maintenance, an
inference arises that the settlor intended the
beneficiary to receive support from the trust estate,
regardless of other income. See Taylor v. Hutchinson, 17
Ariz.App. 301, 304-05, 497 P.2d 527 (1972); Eslate of Wells v.
Sanford, T m t e e , 281 Ark. 242, 246-47, 663 S.W.2d 174
(1984); Hamilton Nut. Bank v. Cltilders, 233 Ga. 427, 428, 211
S.E.2d 723 (1975); In re Coats Trust, 581 S.W.2d 392, 393-96
(Mo.App.1979) ; see Restatement (Second) of Trusts 5 128,
comment e (1957).
Godfrey, 811 P.2d at 1251
For these reasons, the Kansas Court held as follows:
We hold the trustee shall pay Peggy support, health, and
maintenance for the period of her natural life
irrespective of her individual income. The testator
obviously intended to provide maintenance for his wife
for her life. His provision is limited only by what is
necessary. In other words, it cannot be used to provide
nonessential items.
Godfrey, 811 P.2d at 1253.
The same interpretation of the word ''necessary," as it
described expenditures from a testamentary trust, was applied in
12
Remer v. Castellano ( N . J . Super. Ct. Ch. Div. 1952), 91 A. 2d 176, 180,
where that court held that:
The word "necessary" as used here in the first
paragraph, considered with the context, and in the light
of the surrounding circumstances, refers to what is
required to accomplish testator's intention, namely, the
comfortable maintenance and care of his widow, the scope,
the range, and the cost of it. Without doing violence to
every other expression in the will, it could not be said
that the benefaction was conditional upon the widow's
financial ability to support and maintain herself. Cf.
Camden Safe Deposit & Trust Co. v. Read, 124 N.J.Eq. 599,
4 A.2d 10 (Ch. 1939), in which it was held that the word
"necessary" did not refer to the beneficiary's inability
to meet the expense of certain stated contingencies.
In accord is Estateof Welkv. Sanford (Ark. 1984), 663 S.W.2d 174,
Based on the above authority, I conclude that the term
"necessary," as used in Paragraph 4 of Karl Lindgren's testamentary
trust, refers to the type of expenditures the trustee is authorized
to incur. They include, at a minimum, those expenditures related
to Anna's support, housing, and health care during her lifetime.
The term "necessary, as used in Karl's testamentary trust, does
"
not refer to Anna's ability to pay for those expenses from her own
financial assets.
For these reasons, I specially concur with the majority's
conclusion that the trustee is obliged, under the terms of Karl
Lindgrents testamentary trust, to pay for Anna Lindgren's total
living and medical expenses from and after the date of her
husband's death.
I also concur with the majority's conclusions under Issues 111
and IV of its opinion.
Justice Karla X. Gray joins in the foregoing concurring opinion.
November 23, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order w s sent by United States mail, prepaid,
a
to the following named:
John T. Jones
MOULTON, BELLINGHAM, LONGO & MATHER
P.O. Box 2559
Billings, MT 59103
Gene A. Picotte
Attorney at Law
1066 Helena Ave.
Helena. MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MON'IXNA