This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).






Estate of:† Julia Teresa Proctor, Decedent.


Filed June 25, 2002


Kalitowski, Judge


Cass County District Court

File No. P700746


James R. Doran, 416 East Hennepin, Minneapolis, MN 55414 (for appellants Frederick Proctor and Isabelle Schulte)


Stephen M. Baker, P.O. Box 924, Walker, MN 56484 (for respondent Stephen Carlson)


††††††††††† Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Hanson, Judge.

U N P U B L I S H E D†† O P I N I O N


Appellants Frederick Proctor and Isabelle Schulte appeal from a district court order construing their motherís will as devising all of her real property to her grandson.† Appellants contend that the will did not refer to a parcel of land owned by testator and that because the will does not contain a residuary clause, the parcel should be distributed under the laws of intestacy.† We affirm.



††††††††††† When reviewing a district courtís probate determination, this courtís review is limited to ďdeciding whether the [district] courtís findings are clearly erroneous and whether it erred in its legal conclusions.Ē† In re Estate of Sangren, 504 N.W.2d 786, 788 (Minn. App. 1993) (citation omitted).

††††††††††† Extrinsic evidence of testatorís intent should only be considered if, after viewing the surrounding circumstances, an ambiguity or contradiction persists.† Estate of Cole, 621 N.W.2d 816, 819 (Minn. App. 2001).† Further, extrinsic evidence should only be used to determine what the testator meant ďby the words used, not to determine an intent that cannot be found in the * * * instrument.Ē† Id.†

††††††††††† 1.†††††††† Was the will ambiguous?

††††††††††† Appellants contend that the will is not ambiguous.† They claim that testator knew the extent of her property and intentionally failed to transfer one of her parcels in her will.† Thus, appellants allege this parcel must pass through intestacy, and that the court erred by adding a provision to avoid a partial intestacy.† We disagree.

††††††††††† Whether the language of a will is ambiguous is a question of law that this court reviews de novo.† In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn. App. 1992).† When construing a will, the court seeks to ascertain the testatorís actual intent, considering the entire will ďin light of the surrounding circumstancesĒ at the time of its execution.† In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985) (citation omitted).† A will is ambiguous if the language of the will on its face suggests more than one interpretation or if the surrounding circumstances reveal more than one construction even though the language is clear on its face.† Id.

††††††††††† Here, the district court properly found that the surrounding circumstances demonstrate an ambiguity in testatorís will.† Because her will did not contain a residuary clause, testator either thought the will disposed of all her property, or she intended that some of her property pass equally to her heirs through intestate succession.† But testatorís will does not mention appellant Frederick Proctor, and makes no class gifts.† And testatorís will gives appellant Isabelle Schulte only half of testatorís personal property.† After disposing of most of her property in such an uneven manner, it is unlikely that testator intended for all her heirs to receive equal shares of one of her parcels of real property.

††††††††††† Moreover, testator left her ďhouse propertyĒ to her grandson and then defined that term with a legal description of one of her two parcels.† But surrounding circumstances indicate that testator thought of the two parcels as one property.† Testatorís son, James Proctor, stated in an affidavit that testator thought of the two parcels as one parcel and paid her property taxes with only one check with one property identification number for both parcels.† Thus, testatorís view of her two parcels creates another ambiguity concerning what real property testator transferred.

2.†††††††† Did the district court clearly err by determining the will conveyed all of testatorís real property?

††††††††††† Appellant contends the district court erred by determining that testatorís will conveyed all of her property.† We disagree.† The district court noted that testatorís will demonstrates testatorís intent to distribute her property unequally.† Thus, the district court reasoned that testator did not intend to leave part of her property to be equally divided among her descendants in intestacy.† The district court then held that testator passed all of her real property solely and completely to respondent so nothing passed by intestacy.†

††††††††††† Because an ambiguity exists in testatorís will, extrinsic evidence may be used to determine testatorís intent.† Cole, 621 N.W.2d at 819.† Here, the following evidence in the record supports the district courtís determination that testator intended to convey all her real property to respondent:† (1) inferences drawn from the other dispositions of testatorís will; (2) the affidavit of James Proctor; and (3) the affidavits of three of testatorís friends (Frank Diedrich, Lou Williams, and Dolores von Brugger) indicating that testator intended to give her grandson all of her real property.† Because the record supports the district courtís determination, we conclude that the district court did not err in construing the will to pass all of testatorís real property to her grandson.

††††††††††† Affirmed.