In the Trust of Roger S. Linn Restated Trust Agreement, deceased
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
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
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.
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.
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.
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.
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
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.
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.
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.
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 ...