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In re Trust of Linn Restated Trust Agreement

Supreme Court of North Dakota

February 28, 2019

In the Trust of Roger S. Linn Restated Trust Agreement, deceased
v.
Wells Fargo Bank, N.A. and Harris W. Widmer as co-Trustees of the Roger Linn Trust, Respondents and Appellees Scott Ottum, attorney in fact for Shirley A. Linn, Petitioner, Appellant, and Cross-Appellee and Stephen T. Linn, Deborah R. Wagner, and Mark Wagner, Respondents, Appellees, and Cross-Appellants

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

          Charlotte J.S. Rusch (argued) and Whitney M. Irish (on brief), Fargo, ND, for petitioner, appellant, and cross-appellee.

          Shannon M. Gregor (argued) and Cloe A. Kilwein (on brief), Fargo, ND, for respondents and appellees.

          Michael T. Andrews (argued) and Ashley K. Champ (on brief), Fargo, ND, for respondents, appellees, and cross-appellants.

          OPINION

          JENSEN, JUSTICE.

         [¶1] Shirley Linn appeals from a district court order denying her petition seeking a distribution of trust assets, after the court concluded the unambiguous language of the trust agreement did not compel the requested distributions. Stephen Linn, Deborah Wagner, and Mark Wagner cross-appeal the district court's denial of their request for a recovery of their attorney fees incurred in responding to Shirley Linn's petition. We conclude the trust agreement's language is ambiguous, and we reverse and remand this case for further proceedings in the district court.

         I

         [¶2] In March 1978, Roger Linn executed a revocable trust agreement. The trust was amended and restated in June 2000. The trust provided for the distribution of the trust property at the time of Roger Linn's death by dividing the property into two separate trusts; the Linn Family Trust and the Linn Marital Trust. Roger Linn died in 2003.

         [¶3] Shirley Linn was Roger Linn's spouse at the time of his death and is a beneficiary identified in the trust agreement. Stephen Linn, Deborah Wagner, and Mark Wagner are remainder beneficiaries. Wells Fargo and Harris Widmer were named as co-trustees of the original revocable trust, the Marital Trust, and the Family Trust.

         [¶4] The trust agreement provided Shirley Linn with the right to choose one of two residences held by the trust as her principal residence following the death of Roger Linn. The trust agreement further provided the selected residence would be maintained for her as long as she resided in the residence.

         [¶5] In September 2016, Shirley Linn moved into an assisted living center in Fargo. The Marital Trust paid expenses for Shirley Linn to obtain a residential unit, including reservation fees, initial rental fees and moving expenses. After moving in, Shirley Linn requested the co-trustees pay the ongoing monthly living costs charged by the assisted living facility, in addition to the monthly income distributions she was receiving from the Marital Trust. The co-trustees continued to make the income distributions from the Marital Trust, but declined to make additional distributions for Shirley Linn's ongoing monthly living costs being charged by the assisted living facility.

         [¶6] Shirley Linn filed a petition with the district court seeking an order requiring the distribution of trust assets to pay the ongoing monthly living costs charged by the assisted living facility. The remainder beneficiaries and the co-trustees opposed the petition.

         [¶7] At issue is the trust agreement's directive to the co-trustees to pay "any obligations the Donor's spouse may incur in acquiring assisted living or nursing home care," as used in Article V(10)(F) of the trust agreement. The co-trustees and the remainder beneficiaries contend that the use of the term "acquiring" limits the directive to the payment of the initial assisted living expenses and excludes the ongoing monthly living costs charged by the assisted living facility. They assert Shirley Linn is already receiving income distributions sufficient to pay the assisted living expenses. Shirley Linn contends, however, that the language is intended to require distributions sufficient to pay the ongoing monthly living costs charged by the assisted living facility regardless of the mandatory income distributions.

         [¶8] All of the parties have asserted the trust document is unambiguous and must be read to support their respective positions. Shirley Linn argues, in the alternative, the trust agreement is ambiguous and the district court should consider extrinsic evidence to determine Roger Linn's ...


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