In re the Trust of Brown , 1986 Minn. App. LEXIS 3971 ( 1986 )

CRIPPEN, Judge,

dissenting.

Being convinced that the decision here cannot be reconciled with a line of controlling Minnesota appellate decisions, I respectfully dissent.

The wishes of a testator or a settlor, unilaterally declared in a will or trust instrument, cannot be thwarted by mechanical attention to certain words used in the document. In the words of the Minnesota Supreme Court:

A will is to be construed by a view of it as a whole and not by giving an arbitrary effect to the presence or absence of particular words or phrases.

Johrden v. Pond, 126 Minn. 247, 249, 148 N.W. 112, 113 (1914).

The controlling rule of law for the case has been settled since declared a century ago in an opinion written by Justice William Mitchell:

The testator has thrown together a number of provisions, evidently without any clear comprehension of their legal import; but the cardinal canon for the construction of wills is that the general intent of the testator overrides all mere technical and grammatical rules of construction. This intent is to be ascertained from a full view of everything within “the four corners of the instrument;” and even the transportation of sentences and limitations is allowable, when necessary to express the clear intent and purpose of the testator.

Whiting v. Whiting, 42 Minn. 548, 549-50, 44 N.W. 1030, 1031 (1890).

The general intent of the settlor here is patent. He executed the will and trust instruments to provide equal marital and family trusts and to obtain for his family the estate tax benefits of a maximum marital deduction. To avoid prolonged discussion of language in the instruments, it suffices to examine the words of article 11 of the trust instrument, quoted by the majority. The settlor says in this article that the purpose of his declarations is “so that assets in the MARITAL TRUST will be the maximum marital deduction allowable and no more when taken in the aggregate with all other marital deductions allowed.” The testator’s will contained similar declarations.

The trial court felt compelled to deal with article 11 according to its practical design for adjustments or corrections of funding for trusts that became necessary because of tax auditing decisions. The majority also dismisses the importance of the paragraph because of its limited function. These conclusions fail to deal with the real import of the language in the paragraph. The expression of intent in article 11 is clear, no matter what practical function the paragraph may serve in the creation and administration of the trusts.

The trial court correctly observed that respect must normally be given to the ordinary meaning of all unambiguous words in a trust. In re Fiske’s Trust, 242 Minn. 452, 460, 65 N.W.2d 906, 910 (1954). It is also true, however, that this determination must not be pursued where this leads to an unreasonable or absurd result. Id., 65 N.W.2d at 911. Rules of construction must give way to the general intent of the set-tlor. Whiting, 42 Minn. at 549-50, 44 N.W. at 1031. The reference to probate assets in article two of the Brown trust is unexplainable, and it is unreasonable to permit an ordinary reading of this clause to upset the patent intent of Burton Brown in his estate plan. The trust language should be interpreted to permit the funding of the marital trust that was intended.