This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-95-2694

In the Matter of the Trust Created
in and by the Last Will and Testament
of Emma K. Gilfillan, Deceased,
for Mary Thurman Sisson.

Filed July 9, 1996
Affirmed
Schultz, Judge
*

Ramsey County District Court
File No. C9-46-257628

Bruce L. McLellan, Bowman & Brooke, 150 South Fifth Street, Suite 2600, Minneapolis, MN 55402; Richard G. Morgan, 7323 Hames Way, Eden Prairie, MN 55346; James M. Elliott, 3127 East Second Street, Tucson, Arizona 85716 (for Appellant Betsy Ann Conner, Conservator)

Martin H. Fisk, Jeffrey F. Shaw, Briggs and Morgan, P.A., W-2200 First National Bank Building, St. Paul, MN 55101 (for Respondent First Trust National Association)

Sandra J. Martin, Thomas H. Boyd, Winthrop & Weinstine, P.A., 3200 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for Respondent Charles D. Gilfillan Memorial, Inc.)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Mary Thurman Sisson is the beneficiary of a trust created by the will of Emma K. Gilfillan. Sisson's conservator challenges a district court order construing the testamentary language to mean that the trustee may consider both conservatee's income and assets in determining whether the trust income is "needed for her comfortable support and maintenance in addition to her other income." We affirm.

FACTS

When Emma K. Gilfillan died in December 1946, her will provided that nearly one-fourth of her estate be used to create a trust for her niece, Mary Thurman Sisson. The will directed the trustees to pay so much of the income from the trust "as shall be needed for [Sisson's] comfortable support and maintenance in addition to her other income." It specifically added:

The decision of the trustees as to the amount of income payable to Mary Thurman Sisson shall be final and binding upon all persons interested in this trust.

The will also bequeathed nearly one-half of the estate to a charitable corporation, the Charles D. Gilfillan Memorial, Inc. (the Gilfillan Memorial), to provide medical and surgical care for the poor of rural Minnesota. Each year, if Sisson did not require the trust income, the trustee, First Trust National Association (First Trust), was directed to pay it to the Gilfillan Memorial.

Until 1992, Sisson never requested the trust income. In 1992 and 1993, through her conservator, Betsy Ann Conner, she requested the income, and First Trust paid it without making any inquiry as to her need. During 1994, however, First Trust obtained copies of the 1993 conservatorship records and learned that Sisson's investment portfolio showed an ending balance of more than $4 million. In 1993, the dividends and interest on Sisson's investments were $155,340.47 (not including the disbursement from her Gilfillan trust). Her 1993 expenses (including taxes, maintenance, conservatorship and guardianship fees, and a $40,000 personal allowance) totalled $540,505.45. Nevertheless, Conner reported that

[f]rom the income received from the assets this accounting period, [Conner had] been able to save a considerable sum and has invested said sum in certificates of deposit and U.S. Treasury Bills.

Based on the conservatorship records, First Trust paid the 1994 income to the Gilfillan Memorial and refused Conner's request. It reasoned that Sisson's total assets and Conner's admitted ability to reinvest a "considerable sum" of Sisson's income demonstrated that Sisson did not require the 1994 income for her support and maintenance.

When Conner disputed the decision, First Trust petitioned the district court for an interpretation of the testamentary language and for an allowance of its accounts from January 1989 to January 1995. The district court approved the accounts. Reading Gilfillan's will to mean that First Trust had broad discretion in determining Sisson's need, it concluded that First Trust had properly considered Sisson's reported "excess income" and "substantial assets" in denying her request for trust income. It specifically permitted First Trust to "make its own independent evaluation of the transactions in the conservatorship and related entities" and to consider

all of the financial resources in which Mary Thurman Sisson has a beneficial interest, whether or not such resources are subject to the direct control of the conservator

in exercising its discretion in the future.

D E C I S I O N

The construction of a will is a question of law for the court. See In re Atwood's Trust, 227 Minn. 495, 499, 35 N.W.2d 736, 739 (1949). A reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The purpose of the court in construing a will is to 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 of the will.

In re Will of Hartman, 347 N.W.2d 480, 482-83 (Minn. 1984).

1. Conner contends the district court erred in ruling that First Trust has broad discretion to determine Sisson's need for trust income. She insists the will vests Sisson herself (and thereby her conservator) with the sole authority to assess her need because only she can assess what is necessary for her "comfortable support and maintenance." We disagree.

Gilfillan's will specifically defers to "the decision of the trustees" in deciding whether trust income is required by Sisson. The will also states that the trustees' decision is "final and binding" on all persons interested in the trust. Taking the instrument as a whole, we hold that First Trust has full discretion to determine Sisson's need.

2. Conner contends the district court disregarded the testator's intent by erroneously equating assets with income in its conclusion that First Trust may consider all of Sisson's resources in determining her need for trust income. She argues that Gilfillan, by specifically providing trust income for Sisson's support if needed "in addition to her other income," could not have intended that First Trust consider her other assets. We are unpersuaded.

"In the construction of language used in a testamentary trust, precedents are not of great value." In re Will of Tuthill, 247 Minn. 122, 126, 76 N.W.2d 499, 502 (1956) (footnote omitted). In ascertaining the settlor's intent, we are guided by "the dominant intention * * * gathered from the instrument as a whole, not isolated words." Id. (emphasis added) (citation omitted). All that is required is "a reasonable and sensible construction upon the language used." Id. Indeed, the canons of construction "are only aids for ascertaining testamentary intent" and should be followed "only so far as they accomplish that end." Id.

Tuthill's approach to its particular facts provides us with some guidance in this case. In Tuthill, the settlor created a trust by which the trustee was to use the portion of the trust income "necessary for the reasonable and proper care" of her son, Eugene. Id. at 123, 76 N.W.2d at 500. The remainder beneficiaries were the settlor's other son, Blaine, and Blaine's children. Id. at 124, 76 N.W.2d at 500-01. In his own right, Eugene owned a one-sixth interest in a farm. Id. at 125, 76 N.W.2d at 501. The district court was asked to determine whether Eugene's support should be paid out of the trust without regard for his interest in this farm property. Id. The district court construed the trust instrument to hold that the settlor's intention was that "the assets of Eugene Thomas Tuthill should be first used for his care, support and maintenance." Id. at 125, 76 N.W.2d at 501.

In affirming, the supreme court affirmed first noted that Eugene did not have an absolute right to the trust income, but only so much as the trustee in his discretion determined should be used for such support. Id. at 127, 76 N.W.2d at 503. The court further considered the language of the entire instrument to discern the objectives the settlor wished to accomplish. Id. at 128, 76 N.W.2d at 503. Although the settlor's primary objective was to ensure that Eugene had adequate support during his life, she also wanted to leave her remaining property to Blaine and his children. Id. The court concluded:

It seems clear to us that, taking the will as a whole, it was the intention of testatrix that only so much of the property of the trust, income or corpus, be used as was necessary to furnish proper care, support, and maintenance for Eugene over and above that which he was able to furnish for himself.

Id. at 129, 76 N.W.2d at 504.

Although it is true that, unlike Gilfillan, the settlor in Tuthill did not direct the trustee to pay what was necessary for the beneficiary's support in addition to his other income, we believe this is a distinction without a difference. The term "income" is not a precise term, but one requiring construction in light of the settlor's intent. We must read the instrument as a whole to determine Gilfillan's intent. In so doing, it seems fair to conclude that the Gilfillan Memorial was the primary object of Gilfillan's bounty. Not only did she direct that nearly one-half of her estate be used to fund this memorial, she also directed that any income from two individual trusts that was not needed by either of the beneficiaries should also be paid to the memorial. In light of Gilfillan's fundamental objective, we interpret her "needed * * * in addition to other income" language to mean only that First Trust has an obligation to consider whether Sisson has the financial ability to adequately care for her own needs.

3. Finally, Conner asks this court to hold that the expenses and taxes of the Arizona conservatorship be charged against income. Conner admits the district court did not reach this issue (probably because it lacked subject matter jurisdiction), and although Conner claims First Trust made the argument below, she does not cite to the record.

A reviewing court must limit itself to a consideration of only those issues that the record shows were presented and considered by the trial court in deciding the matter before it.

Thayer v. American Fin. Advisors, Inc., 322 N.W.2d 599, 604 (Minn. 1982) (emphasis added). Accordingly, the issue is not properly before this court.

Affirmed.


Footnotes

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