This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-20

 

Estate of: Leonard Loverne Evenmo,
a/k/a Vern Evenmo, Deceased.

 

Filed September 2, 2003

Affirmed

Stoneburner, Judge

 

Anoka County District Court

File No. P6699358

 

William J. O’Brien, Timothy J. Grande, Joanne H. Turner, Mackall, Crounse & Moore, P.L.C., 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondents Caryn Evenmo and Michael Evenmo)

 

Robert M. Pearson, 13005 Main Street, Rogers, MN 55374; and

 

Melvin J. Peterson, Jr., 11431 97th Place North, Maple Grove, MN 55356 (for appellants Sandra Evenmo, Mark Evenmo, and Cheryl Evenmo)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            Appellants, who are three children of the deceased, Leonard Loverne Evenmo,  challenge the district court’s denial of their petition to, among other things, declare that their father’s will did not create a valid trust.  Because a valid trust was established under the will, we affirm.

FACTS

 

Leonard Loverne Evenmo’s will bequeathed most of his estate, including all personalty and the entire residue of the estate, in equal shares to his five children.  The will provided that decedent’s shares of stock comprising a 100% interest in decedent’s business, Limpro, Inc., would be collected by co-trustees named in the will and held “in trust for the benefit of my children and the issue of predeceased children by right of representation.”

My co-Trustees shall manage the business operations of Limpro, Inc.,  until such time as the business may be sold and a complete transfer of the business operation is made to the purchasers.  The co-Trustees shall elect my children, Mark Todd Evenmo and Caryn DeAnn Evenmo as the sole directors and officers of Limpro, Inc. to serve until sale of the business…

 

Upon sale of Limpro, Inc., the co-Trustees may, at their option, terminate the trust and transfer all cash assets and accounts receivable rights in equal shares to my surviving children and the issue of my predeceased children per stirpes.

 

            The will further gave the co-trustees all of the powers enumerated in Minn. Stat. § 501.66[1] of the Minnesota Trustees Powers Act and the power to invest the trust estate in investments “that incur little or no risk to the trust corpus.”

            Decedent’s children, Caryn Evenmo and Mark Evenmo, were named co-trustees, and Caryn Evenmo and her brother, Michael Evenmo, were named as co-personal representatives under the will.   Mark Evenmo resigned as an officer and director of Limpro, Inc. and as co-trustee of decedent’s trust several months after decedent’s death.  The will gave the co-trustees the power to nominate additional or successor trustees and provided that if either resigned as a co-trustee without naming a successor, the other would continue as trustee.  Caryn Evenmo has acted as sole trustee since Mark Evenmo’s resignation and in that capacity has managed Limpro, Inc. and is president and sole officer of the closely held business.  Michael Evenmo is an employee of Limpro, Inc.        Appellants Mark Evenmo, Sandra Evenmo, and Cheryl Evenmo petitioned the court for a declaration that the will did not create a valid trust and for distribution of the stock and property of Limpro, Inc. under the residuary clause of the will.  The district court denied the petition, and this appeal followed.

D E C I S I O N

 

            On review, appellate courts evaluate the district court’s findings concerning wills and trusts under a clearly erroneous standard and review conclusions of law de novo.  In re Estate of Simpkins, 446 N.W.2d 188, 190 (Minn. App. 1989).  Only limited issues are before us, specifically, whether a testamentary trust was created by decedent’s will and, if so, whether the trust is invalid because it violates Minnesota’s rule against perpetuities.

            Appellants first argue that the district court erred by finding that decedent’s will created an enforceable testamentary trust.  Appellants assert that the will did not create a trust because there are no enforceable duties or obligations and the language purporting to create the trust is so patently vague and ambiguous that the testator’s intent cannot be ascertained. 

            A trust is not created unless “the settlor manifests, by external expression, an intent to create that relationship which embraces the essential elements of a trust.”  In re Bush’s Trust, 249 Minn. 36, 42, 81 N.W.2d 615, 619 (1957).  No specific words or particular form are required to create a trust.  Id.  A trust has been created if a court determines that there was intent to create a relationship that includes the essential elements of a trust:

(1) a designated trustee subject to enforceable duties, (2) a designated beneficiary vested with enforceable rights, and (3) a definite trust res wherein the trustee’s title and estate is separated from the vested beneficial interest of the beneficiary.

 

Id. at 43, 81 N.W.2d at 620.  “In construing a will, the cardinal rule is that the testator’s intention is to be gathered from the language of the will itself.”  In re Shields, 552 N.W.2d 581, 582 (Minn. App. 1996) (quotation omitted), review denied (Minn. Oct. 29, 1996).  The language of Leonard Evenmo’s will requires that the Limpro stock be held “in trust for the benefit of my children and the issue of predeceased children by right of representation.”  Appellants argue that this language is vague and ambiguous.  In discerning a testator’s intent, courts consider the circumstances surrounding the execution of the will and examine the issue from the position of the testator at the time the will was executed.  In re Hartman, 347 N.W.2d 480, 482-83 (Minn. 1984).  Here, the language of the will is unambiguous.  Although many decisions are left to the discretion of the trustees, the will provides for transfer of stock to the trust and for sale of the corporation and distribution of the assets at the discretion of the trustees.

            The will designates trustees who are required to collect the stock, hold it in trust for the benefit of decedent’s children, manage the business, elect the directors and officers of the business, and invest the trust estate.  The trustees are further given the statutory duties contained in Minn. Stat. § 501.66, which is incorporated by reference.             The beneficiaries are clearly identified and are vested with enforceable rights, including the right to distribution of the cash assets and accounts receivable on termination of the trust, the right to enforce the trustees’ duty to hold the stock for their benefit, and the right to enforce the trustees’ fiduciary duties imposed by law.  The legal ownership of the stock is separate from the beneficiary interest ownership, and the trust has a definite res: the stock of Limpro, Inc. 

            Because the language of the will expresses a clear intent to create a trust and provides for all of the elements of a valid trust, the district court’s finding that a valid testamentary trust was created is not clearly erroneous.

            Appellants next assert that the trust is invalid under the rule against perpetuities.  In 1987, Minnesota adopted the Uniform Statutory Rule Against Perpetuities:

A non-vested property interest is invalid unless:

(1)       when the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or

(2)       the interest either vests or terminates within 90 years after its creation.

 

Minn. Stat. § 501A.01(a) (2002).  The rule alters the common-law rule against perpetuities by adopting a “wait and see” approach, rather than the common-law approach that invalidates an interest that has the possibility of not vesting within the period of a life in being plus 21 years.  See Unif. Statutory Rule Against Perpetuities (amended 1990), 8B U.L.A. prefatory note at 224-226 (2001).  Under the “wait and see” approach, courts do not determine that a trust provision is invalid at its outset due to the possibility that it may not vest within a prescribed time, but wait to see if vesting does occur.  If the property interest does not vest within the time required, the courts will then invalidate the trust.  Because the trust here may be terminated at any time by sale of the business, it may terminate within 90 years of its creation. The district court did not err in concluding that the trust does not violate Minnesota’s rule against perpetuities. 

            Affirmed.

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Minn. Stat. § 501.66 was repealed effective January 1, 1990, but reinstated as Minn. Stat. § 501B.81.