This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re: Estate of Robert W. Otto,
a/k/a Robert William Otto
and Robert Otto, Deceased.
Filed May 15, 2007
Washington County District Court
File No. P7-03-5968
Michael C. Hager, 301 Fourth Avenue South, Suite 270, Minneapolis, MN 55415 (for appellant James Otto)
Gene E. Adkins, Hitchcock Law Firm, P.L.L.P., 1465 Arcade Street, St. Paul, MN 55106 (for respondent William Otto)
Catherine Wolff, 5435 Rice Lake Road, Duluth, MN 55803 (pro se respondent)
Michelle A. Cain, 455 Burlington Road, St. Paul, MN 55119 (nominated trustee of Robert W. Otto Education Trust)
Considered and decided by Ross, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.
James Otto challenges the district court’s determination that a devise in his
father’s will of a certificate of deposit was specific, that the devise was
adeemed by extinction, and that the bonds purchased with the proceeds of the
certificate should be placed in the residue of the estate. Because the district court did not clearly
err in finding that the devise to appellant is specific and because none of the
exceptions to ademption that have been adopted by the
The will at issue here was executed by Robert W. Otto in 1998. Of particular importance to this appeal is the following paragraph:
I devise . . . one-half (1/2) of any Minnesota Power and Light Company common stock which I own at the time of my death and my two Certificates of Deposit, currently held by Piper Jaffray (Provident Bank Ohio Certificate of Deposit and Bankers Trust Co. Certificate of Deposit) to my son, JAMES OTTO [appellant herein].
At that time, the Provident Bank CD was valued at $25,000.
Three months after execution of the will, the Provident
Bank CD was called by the issuer and redeemed.
With the proceeds, other bonds were purchased, including a $15,000
municipal bond of
Appellant’s mother died in 2001; his father died in 2003, approximately five years after the Provident Bank CD was redeemed. Appellant’s brother, respondent William Otto, was appointed personal representative and distributed the following devises under the will: $1,000 to one daughter; $86,006 in stocks and dividends to appellant; $122,443 in stocks and dividends to respondent and his wife; and $36,473 in stocks and dividends to another daughter and her husband. In total, appellant received approximately $120,000 in probate and non-probate transfers from the estate. At the time of the final account, the residue of the estate contained approximately $297,000 to fund an education trust for the great grandchildren.
Respondent thereafter petitioned for an order of complete settlement and a decree of distribution, for a determination of disposition of personal property, and for interpretation of the devise to appellant. Following a hearing, the district court found that the Provident Bank CD was a specific devise that adeemed by extinction and that the bonds purchased with the proceeds of the certificate were part of the residue of the estate.
district court’s “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous.”
a will, a court should “‘ascertain the actual intention of the testator as it
appears from a full and complete consideration of the entire will when read in
light of the surrounding circumstances at the time of the execution.’” In re
Estate of Zagar, 491 N.W.2d 915, 916 (Minn. App. 1992) (quoting Matter of Hartman, 347 N.W.2d 480,
482-83 (Minn. 1984)). A specific devise
occurs when a testator’s intent is for the devisee to receive the specific item
mentioned in the will, not merely a corresponding amount in value. In re
Here, with the exception of a $1,000 devise to one of his daughters, the devises all refer to specific shares of common stock or certificates of deposit. At the hearing, respondent confirmed that his parents “divided their property between their kids in kind rather than by percentages” and that “their basic plan was to divide some of their property between their children, and then . . . set up a trust for the education of their great grandchildren.” He agreed that the will “started out with the intent that [the devises] would all be even” and that his parents “wanted to treat their kids fairly equally,” even though the value of the various stocks might fluctuate.
Based on the language of the will and on the testimony given by respondent regarding his father’s intent, the district court found that the devise of the Provident Bank CD was specific. Because reasonable evidence supports this finding and because we are not left with a definite and firm conviction that a mistake has been made, we affirm the district court’s finding as not clearly erroneous.
devise is found to be specific, it fails or is adeemed if the fund or property bequeathed
is not in the estate at the time of the testator’s death.
The district court examined these statutory exceptions, but determined that none applied here. In particular, the court explained:
Minn. Stat. §524.2-606(a) and (b) address the issue of non-ademption of specific devises. Subsection (b) does not apply as neither [of the parents was] under a conservatorship, guardianship, or subject to durable power of attorney at the time the Provident CD was redeemed.
Minn. Stat. §524.2-606(a) contains four subparts, none of which apply, in determining the right of an individual to receive a specific devise. Minnesota has not adopted two additional subsections, which are contained as subsections 5 and 6 to the Uniform Probate Code (UPC). Subsection 5 of the UPC provides as follows:
(5) Any real property or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property.
It is quite likely that had the Minnesota Legislature adopted
subsection 5 of the UPC, this matter would not be before the Court. [Appellant] would, pursuant to UPC
§2-606(a)(5) be entitled to tangible personal property owned by [his father] at
the time of his death which was “acquired as a replacement for specifically
devised . . . tangible property.” The
Court need not reach the issue of whether [appellant] would be entitled to
proceeds acquired as a result of the additional infusion of money by [his
father] to purchase the St. Paul HRA bond.
Rather, because Subsection 5 of the UPC has never been adopted in
The district court’s analysis is legally sound.
nevertheless argues that his father’s intent should be given effect and that
the devise should be distributed to him either as a general devise or as a
specific devise without ademption under the UPC. Appellant further argues that a change in the
form of the property should not cause ademption and that extinction by
ademption can be avoided if the form of the devise has not changed
substantially. Appellant admits that
there are no
We therefore affirm the district court’s decision.
 Comments to the UPC indicate that subsections
(a)(5) and (a)(6) were drafted to recognize the “intent” theory and to break
away from the “identity” theory of ademption.
See Unif. Probate Code § 2-606
(1990 Rev. Art. II), 8 Pt. I U.L.A. 177 (1998) & 48-49 (Supp. 2006). The Minnesota legislature clearly chose to
continue to follow the identity theory when it amended Minn. Stat. § 524.2-606
(1992) and replaced it with a modified version of UPC § 2-606 that did not
include subsections (a)(5) and (a)(6).