This opinion will
be unpublished and
may not be cited except as
Minn. Stat. § 480A.08,
subd. 3 (2002).
IN COURT OF APPEALS
Estate of: Leonard Loverne Evenmo,
a/k/a Vern Evenmo, Deceased.
September 2, 2003
County District Court
File No. P6699358
William J. O’Brien, Timothy J. Grande, Joanne H. Turner,
Mackall, Crounse & Moore, P.L.C., 1400 AT&T Tower, 901 Marquette
Avenue, Minneapolis, MN 55402 (for respondents Caryn Evenmo and Michael Evenmo)
M. Pearson, 13005 Main Street, Rogers, MN 55374; and
J. Peterson, Jr., 11431 97th Place North, Maple Grove, MN 55356 (for appellants
Sandra Evenmo, Mark Evenmo, and Cheryl Evenmo)
and decided by Harten,
Presiding Judge, Stoneburner,
Judge, and Parker,
U N P
U B L I S H E D O P I N I O N
who are three children of the deceased, Leonard Loverne Evenmo, challenge the district court’s denial of
their petition to, among other things, declare that their father’s will did not
create a valid trust. Because a valid
trust was established under the will, we affirm.
Evenmo’s will bequeathed most of his estate, including all personalty and the
entire residue of the estate, in equal shares to his five children. The will provided that decedent’s shares of
stock comprising a 100% interest in decedent’s business, Limpro, Inc., would be
collected by co-trustees named in the will and held “in trust for the benefit
of my children and the issue of predeceased children by right of representation.”
My co-Trustees shall manage the business operations of
Limpro, Inc., until such time as the
business may be sold and a complete transfer of the business operation is made
to the purchasers. The co-Trustees
shall elect my children, Mark Todd Evenmo and Caryn DeAnn Evenmo as the sole
directors and officers of Limpro, Inc. to serve until sale of the business…
Upon sale of Limpro, Inc., the co-Trustees may, at their option,
terminate the trust and transfer all cash assets and accounts receivable rights
in equal shares to my surviving children and the issue of my predeceased
children per stirpes.
will further gave the co-trustees all of the powers enumerated in Minn. Stat.
Minnesota Trustees Powers Act and the power to invest the trust estate in
investments “that incur little or no risk to the trust corpus.”
children, Caryn Evenmo and Mark Evenmo, were named co-trustees, and Caryn
Evenmo and her brother, Michael Evenmo, were named as co-personal
representatives under the will. Mark
Evenmo resigned as an officer and director of Limpro, Inc. and as co-trustee of
decedent’s trust several months after decedent’s death. The will gave the co-trustees the power to
nominate additional or successor trustees and provided that if either resigned
as a co-trustee without naming a successor, the other would continue as
trustee. Caryn Evenmo has acted as sole
trustee since Mark Evenmo’s resignation and in that capacity has managed Limpro,
Inc. and is president and sole officer of the closely held business. Michael Evenmo is an employee of Limpro,
Mark Evenmo, Sandra Evenmo, and Cheryl Evenmo petitioned the court for a
declaration that the will did not create a valid trust and for distribution of
the stock and property of Limpro, Inc. under the residuary clause of the
will. The district court denied the
petition, and this appeal followed.
D E C I S I O N
review, appellate courts evaluate the district court’s findings concerning
wills and trusts under a clearly erroneous standard and review conclusions of
law de novo. In re Estate of
Simpkins, 446 N.W.2d 188, 190 (Minn. App. 1989). Only limited issues are before us, specifically, whether a
testamentary trust was created by decedent’s will and, if so, whether the trust
is invalid because it violates Minnesota’s rule against perpetuities.
first argue that the district court erred by finding that decedent’s will
created an enforceable testamentary trust.
Appellants assert that the will did not create a trust because there are
no enforceable duties or obligations and the language purporting to create the
trust is so patently vague and ambiguous that the testator’s intent cannot be
trust is not created unless “the settlor manifests, by external expression, an
intent to create that relationship which embraces the essential elements of a
trust.” In re Bush’s Trust, 249
Minn. 36, 42, 81 N.W.2d 615, 619 (1957).
No specific words or particular form are required to create a
trust. Id. A trust has been created if a court determines that there was
intent to create a relationship that includes the essential elements of a
designated trustee subject to enforceable duties, (2) a designated beneficiary
vested with enforceable rights, and (3) a definite trust res wherein the
trustee’s title and estate is separated from the vested beneficial interest of
at 43, 81 N.W.2d at 620. “In construing
a will, the cardinal rule is that the testator’s intention is to be gathered
from the language of the will itself.” In
re Shields, 552 N.W.2d 581, 582 (Minn. App. 1996) (quotation omitted), review
denied (Minn. Oct. 29, 1996). The
language of Leonard Evenmo’s will requires that the Limpro stock be held “in
trust for the benefit of my children and the issue of predeceased children by
right of representation.” Appellants
argue that this language is vague and ambiguous. In discerning a testator’s intent, courts consider the
circumstances surrounding the execution of the will and examine the issue from
the position of the testator at the time the will was executed. In re Hartman, 347 N.W.2d 480, 482-83
(Minn. 1984). Here, the language of the
will is unambiguous. Although many
decisions are left to the discretion of the trustees, the will provides for
transfer of stock to the trust and for sale of the corporation and distribution
of the assets at the discretion of the trustees.
The will designates trustees who are
required to collect the stock, hold it in trust for the benefit of decedent’s
children, manage the business, elect the directors and officers of the
business, and invest the trust estate.
The trustees are further given the statutory duties contained in Minn.
Stat. § 501.66, which is incorporated by reference. The
beneficiaries are clearly identified and are vested with enforceable rights,
including the right to distribution of the cash assets and accounts receivable
on termination of the trust, the right to enforce the trustees’ duty to hold
the stock for their benefit, and the right to enforce the trustees’ fiduciary
duties imposed by law. The legal
ownership of the stock is separate from the beneficiary interest ownership, and
the trust has a definite res: the stock of Limpro, Inc.
Because the language of the will
expresses a clear intent to create a trust and provides for all of the elements
of a valid trust, the district court’s finding that a valid testamentary trust
was created is not clearly erroneous.
Appellants next assert that the
trust is invalid under the rule against perpetuities. In 1987, Minnesota adopted the Uniform Statutory Rule Against
non-vested property interest is invalid unless:
(1) when the interest is created, it is
certain to vest or terminate no later than 21 years after the death of an
individual then alive; or
(2) the interest either vests or terminates
within 90 years after its creation.
§ 501A.01(a) (2002). The rule alters
the common-law rule against perpetuities by adopting a “wait and see” approach,
rather than the common-law approach that invalidates an interest that has the possibility
of not vesting within the period of a life in being plus 21 years. See Unif.
Statutory Rule Against Perpetuities (amended 1990), 8B U.L.A. prefatory
note at 224-226 (2001). Under the “wait
and see” approach, courts do not determine that a trust provision is invalid at
its outset due to the possibility that it may not vest within a prescribed
time, but wait to see if vesting does occur.
If the property interest does not vest within the time required, the
courts will then invalidate the trust.
Because the trust here may be terminated at any time by sale of the
business, it may terminate within 90 years of its creation. The district court
did not err in concluding that the trust does not violate Minnesota’s rule