PUBLISHED OPINION
Case No.: 94-2394
Complete Title
of Case:
In re the Matter of the Estate
of LeRoy J. Furmanski, Deceased:
DALE FURMANSKI,
Appellant,
v.
MELISSA A. FURMANSKI,
Respondent.
Submitted on Briefs: June 6, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August 2, 1995
Opinion Filed: August
2, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If
"Special", JUDGE: JOSEPH D. McCORMACK
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the appellant, the cause was submitted on
the briefs of James H. Morgan of Cedarburg.
Respondent
ATTORNEYSOn behalf of the respondent, the cause was submitted on
the brief of Paul V. Malloy of Houseman, Feind, Gallo & Malloy
of Grafton.
COURT OF APPEALS DECISION DATED AND RELEASED August
2, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-2394
STATE OF WISCONSIN IN
COURT OF APPEALS
In re
the Matter of the Estate
of
LeRoy J. Furmanski, Deceased:
DALE
FURMANSKI,
Appellant,
v.
MELISSA
A. FURMANSKI,
Respondent.
APPEAL
from an order of the circuit court for Ozaukee County: JOSEPH D. McCORMACK, Judge. Reversed and cause remanded.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Dale Furmanski appeals from a decision and
order of the probate court holding that Melissa A. Furmanski is the sole
beneficiary of a living trust created by the deceased, LeRoy J. Furmanski. We reverse the court's ruling. We remand for further proceedings.
FACTS
The
relevant facts and history are not in dispute.
Melissa A. Furmanski and her father, Dale Furmanski, are the adverse
parties to this appeal. LeRoy J.
Furmanski, the deceased, was Dale's father and Melissa's grandfather. Dale is incompetent. As a result, LeRoy obtained legal custody of
Melissa during his lifetime. Dale is
represented in these proceedings by his guardian ad litem.
On
January 9, 1987, LeRoy executed a will which created a testamentary trust. The beneficiaries of the trust are Dale and
Melissa. LeRoy named Howard A. Fiene
and Irene C. Fiene as trustees.
LeRoy's
will further provided that the testamentary trust would terminate either upon
Melissa reaching twenty-four years of age or her earlier death. If the trust terminated upon Melissa
reaching age twenty-four, the trust assets were to be equally divided between
Melissa and Dale. Dale's share,
however, was to be paid to his conservator or guardian. If the trust terminated upon Melissa's death
before age twenty-four, the trust assets were to be distributed to Dale's
conservator or trustee.
Later,
on September 14, 1990, LeRoy executed a document which he denominated the
“Furmanski Trust.” In the body of this
document he described the trust as a “Revocable Living Trust.” This document was apparently drafted without
the assistance of a lawyer. LeRoy named
himself and Peter J. Dundon as trustees.
LeRoy directed the trustees to administer the trust “in such a way as to
best support the lifestyle of Melissa A. Furmanski and LeRoy J.
Furmanski.” We set out the full terms
of the trust in the accompanying footnote.[1] The final clause of this document is
critical to the appellate issue. It
reads as follows:
Upon the
demise of Leroy J. Furmanski, Peter J. Dundon will administer the assets of the
“Furmanski Trust” in accordance with the terms and conditions of the “Will of
Le Roy J. Furmanski” dated the Ninth day of January 1987.
In
the probate court, Melissa and Dale disputed whether this clause: (1) made Melissa the sole surviving
beneficiary of the living trust, or (2) introduced Dale as an added beneficiary
of the living trust.
The
probate court concluded that LeRoy's intent in creating the living trust was
“to probably remove the assets that funded the ‘living trust’ from
probate.” Thus, the court concluded
that LeRoy's intent when using the language in the disputed clause was “to have
certain assets distributed outside the Will by means of the somewhat unartful
instrument that he created.” Therefore,
the court determined that “it was the intention of LeRoy J. Furmanski that
Melissa A. Furmanski be the sole beneficiary of the living trust created by
him.” Dale appeals.
ANALYSIS
We
begin with our standard of review. The
construction of a testamentary document presents a question of law. See Holy Family Convent v. DOR,
157 Wis.2d 192, 195, 458 N.W.2d 579, 580 (Ct. App. 1990). We review questions of law independently
without deference to the decision of the trial court. Scheunemann v. City of West Bend, 179 Wis.2d 469,
475, 507 N.W.2d 163, 165 (Ct. App. 1993).
Nonetheless, we value the probate court's decision on such a
question. See id. The principles of construction which are
applicable to wills and testamentary trusts are also applicable to inter vivos
trusts. Hamilton v. Forster,
57 Wis.2d 134, 137-38, 203 N.W.2d 711, 713 (1973).
We
also observe that in this case the probate court resolved the issue without
taking any evidence. Instead, the court
answered the issue on the basis of the parties' written briefs which not only
contained the parties' legal arguments, but also recited certain undisputed
historical information. Thus, this is
not a case in which we are obligated to accord “due regard ¼ to the opportunity
of the trial court to judge the credibility of the witnesses.” Section 805.17(2), Stats. As such, the
record on the appellate issue is entirely documentary—a scenario which also
presents a question of law. See Delap
v. Institute of Am., 31 Wis.2d 507, 510, 143 N.W.2d 476, 477 (1966).
The
paramount object of will or trust construction is the ascertainment of the
testator's or settlor's intent. See
Madison Gen. Hosp. Medical & Surgical Found. v. Volz, 79
Wis.2d 180, 186, 255 N.W.2d 483, 486 (1977).
This intent is determined from the language of the document itself,
considered in light of the circumstances surrounding the testator or settlor at
the time the document was executed. See
id. The language of the
document is the best evidence of the testator's or settlor's intent. See id. at 187, 255
N.W.2d at 486. Thus, we first look to
that document. Id. If there is no ambiguity in the document,
there is no need for us to look further as to what may have been the testator's
or settlor's actual intent. See id.
In
this case, the parties do not dispute LeRoy's intent regarding his will and the
testamentary trust created therein. It
is obvious from this document that LeRoy intended to provide for Melissa and
Dale both as beneficiaries of the trust during its existence and as recipients
of the trust assets at its termination.
The
dispute thus narrows to the meaning and effect of the final clause of LeRoy's
living trust. Regardless of the
unartful and ambiguous language appearing in other provisions of LeRoy's living
trust, we hold that this final clause is clearly and unambiguously stated. This language unequivocally and without
limitation directs that upon LeRoy's death the trustee shall administer the
living trust “in accordance with the terms and conditions of the ‘Will of Le
Roy J. Furmanski’ dated the Ninth day of January 1987.”
We
reasonably assume that LeRoy well knew all the terms and conditions of his will
when he invoked this language. Those
terms and conditions included a testamentary trust naming Melissa and Dale as
beneficiaries and as the eventual recipients of the trust assets. It would have been a simple matter for LeRoy
to restrict or modify the terms of the testamentary trust in his living will so
that Melissa would be the sole beneficiary of the living trust after LeRoy's
death. Yet, LeRoy did not employ such
language. Instead, he used language
which ratified, confirmed and invoked the terms and conditions of his will.
Melissa's
argument and the probate court's ruling functionally rewrite LeRoy's will to
eliminate Dale as a beneficiary of the testamentary trust. We cannot approve of such a construction in
the face of LeRoy's clear and simple directive that upon his death, the living
trust was to be administered according to the terms of LeRoy's will. Those terms obviously include Dale. We reverse the decision and order of the
probate court. We remand for further proceedings
consistent with this decision.
By
the Court.—Order reversed and
cause remanded.
[1] The trust
document reads as follows:
Be it known to
all that on this day that I Leroy J. Furmanski do intend to deliver all of my
assets to the “Furmanski Trust” a “Revocable Living Trust.”
In pursuit of
that end I am hereby appointing myself Leroy J. Furmanski and Peter J. Dundon
as Trustees. These trustees are bound
by this document to administer the funds in such a way as to best support the
lifestyle of Melissa A. Furmanski and Leroy J. Furmanski.
Leroy J.
Furmanski shall be in control of all transactions of the “Furmanski
Trust.” In the event that anything
should occur that would prevent Leroy J. Furmanski from active administration
of the “Furmanski Trust” Peter J. Dundon will automatically take over the day
to day obligations of the trust.
Failure to administer shall be determined either by “Power of Attorney”
executed by Leroy J. Furmanski, or evidence as to Leroy J. Furmanski's
incompetence.
Upon the demise
of Leroy J. Furmanski, Peter J. Dundon will administer the assets of the
“Furmanski Trust” in accordance with the terms and conditions of the “Will of
Le Roy J. Furmanski” dated the Ninth day of January 1987.