This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re: Estate of Gerald Edward Theis, Deceased.

Filed October 7, 1997


Davies, Judge

Hennepin County District Court

File No. P496721

Robert M. Frisbee, 4005 West 65th St., Suite 200, Edina, MN 55435-1765 (for appellant Rose Marie Theis)

Robert R. Roos, 1800 Rand Tower, 527 Marquette Ave., Minneapolis, MN 55402 (for respondents Sheila L. Theis, Monica L. Theis, and Marcie J. Theis)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.



Appellant challenges the district court's construction of a will provision and the court's denial of her request that she receive family maintenance from the estate. We affirm.


In August 1986, appellant Rose Marie Theis (wife) and testator Gerald Theis executed an antenuptial agreement. The agreement provided that wife would

make no claim to any part of [testator's] estate as surviving wife; that in consideration of said marriage * * * waives and relinquishes all right of dower, or statutory right, to the real estate * * * and all right to [testator's] personal estate.

Additionally, wife and testator

mutually declared that it [was] their intention that by virtue of said marriage each party shall have or acquire no right, title, or claim in and to the real and personal estate of the other party, but that the estate of each party shall descend to or vest in his or her heirs-at-law, or devisees, * * * as though no marriage had taken place between them.

After the wife and testator married, testator executed a will, which divided his estate between wife and his three daughters of a prior marriage--Marcie J. Theis, Shelia L. Theis, and Monica L. Theis. Testator died in February 1996.

Testator's will and a separate writing were probated. At that time, wife was named personal representative of the estate. When wife petitioned for family maintenance, Marcie J. Theis, joined by her sisters, moved for construction of the will. In construing the will, the district court determined that Article IV of the will applied only to tangible personal property and that all intangible personal property was devised to testator's daughters under the residuary clause. The district court also denied wife's petition for family maintenance, concluding that wife had "waived all claims to [testator's] estate, including maintenance, in the antenuptial agreement." Wife appeals.


In construing a will, this court's purpose

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). Where material facts are not in dispute we need not defer to the district court's application of law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

1. Construction of Testator's Will

On appeal, wife argues that the district court erred in construing Article IV of testator's will. Article IV states:

In accordance with the provisions of Minnesota Statutes Section 524.2-513, I now reserve the right to prepare, and I hereby expressly refer to, a written list disposing of items of tangible personal property to the persons named in said list. * * *

Any personal property not on such a list, or, if no such list shall be in existence at the time of my decease, then all of my personal property, I give to my wife, ROSE MARIE THEIS, if she survives me; or if she does not survive me, then to my children who survive me, in equal shares.

(Emphasis added.)

The district court ruled that the term "personal property" in the second paragraph of Article IV referred only to "tangible personal property" rather than encompassing all of testator's personal property. Wife contends that this interpretation is erroneous because the district court supplied the additional term "tangible" to "alter the meaning" of the clause, and thus denied her such intangibles as stocks and other securities. Testator's children argue that the article refers only to tangible personal property and that the will devises to them all intangible personal property as part of the residue disposed of in Article V.

Neither the will itself nor the probate code defines the term "personal property." "Personal property" in the broadest and most general sense may include "everything that is the subject of ownership, not coming under denomination of real estate." Black's Law Dictionary 846 (abridged 6th ed. 1991). Although the term "personal property" may be construed to include all of testator's property, as wife suggests, this court is not bound to such a definition.

The ultimate test in determining what particular items pass under a testamentary gift of "personal property" is the intention of the testator, which, when ascertainable, is controlling in every instance.

80 Am Jur. 2d Wills § 1249 (1975). When possible, effect should be given to every provision of the will instrument. In re Kischel, 299 N.W.2d 920, 923 (Minn. 1980). Will provisions should be read together and not in isolation. In re Wyman, 308 N.W.2d 311, 315 (Minn. 1981).

We conclude that the district court's construction of the will provision is correct; the devise of "personal property" in the second paragraph of Article IV must be read in the context of that article and the will as a whole. The first paragraph of Article IV refers specifically to a list disposing of "tangible personal property." The second paragraph devises "personal property not on such a list." It is clear from the context that the testator, by the devise of "personal property" in the second paragraph, intended to give only "tangible personal property" to his wife. Moreover, wife's construction, which would leave nothing in the residue, is inconsistent with the rest of the will and is also inconsistent with testator's intent as expressed in the antenuptial agreement.

2. Family Maintenance

Wife also argues that the district court erred in concluding that wife, by antenuptial agreement, waived family maintenance along with her other claims to testator's estate. "An antenuptial agreement is a contract between two consenting adults who have the freedom to contract." In re Estate of Aspenson, 470 N.W.2d 692, 696 (Minn. App. 1991). Where the language of a contract is plain and unambiguous, there is no need for construction. Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977). In support of her assertion, that she is entitled to family maintenance, wife cites a portion of the antenuptial agreement stating that nothing within the agreement should be "construed to bar or prevent either party from giving any of his or her own property to the other party, either by will or otherwise." Testator's specific devise of tangible personal property to wife does not "open the door" and undo the antenuptial agreement as to other property. Because the validity of the antenuptial agreement is not questioned and testator did not make a specific gift of family maintenance, the district court properly denied wife's petition for family maintenance.