This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-97-2232

C8-98-220

In Re: Estate of Robert J. Lloyd, Deceased.

Filed June 30, 1998

Vacated

Davies, Judge

Blue Earth County District Court

File No. P395568

James H. Turk, Blethen, Gage & Krause, P.O. Box 3049, Mankato, MN 56002-3049 (for appellant Deloris Lloyd)

Joseph W. E. Schmitt, Timothy W. Ridley, Richard L. Pemberton, Jr., Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth St., Minneapolis, MN 55402 (for respondents Lawrence L. Lloyd and Louise L. Loosbrock)

Considered and decided by Davies, Presiding Judge, Toussaint, Judge, and Harten, Judge.

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

DAVIES, Judge

Testator's wife challenges the district court's order that she deliver to respondents (testator's children) all items on a handwritten list attached to testator's will, arguing that the court was without jurisdiction to provide relief beyond that requested in the pleadings. We agree and vacate the order.

FACTS

Appellant Deloris Lloyd (wife) and Robert J. Lloyd (testator) were married in September 1992. In October 1992, testator executed a will. Beneficiaries included wife and testator's two children of a prior marriage, respondents Lawrence L. Lloyd and Louise L. Loosbrock.

Section 2.1 of the will devised to wife a life estate in "all furnishings, appliances, and furniture" in their Minnesota home. Section 2.3 of the will stated in part:

Subject to the rights granted to my wife under Section 2.1 above, I give my tangible personal property to the extent provided therein, in accordance with a written list, signed by me and dated and otherwise prepared in accordance with the provisions of Minnesota Statutes, Section 524.2-513.

(Emphasis added.) Attached to the will was a handwritten list of approximately 75 items of personal property that were "to be divided between" testator's two children.[1] Testator died in March 1995, and his will was probated. The district court appointed respondent National City Bank of Minneapolis as personal representative.

In August 1997, the personal representative petitioned for construction of testator's will, requesting specifically that the court determine whether the dishes, china, silver, and crystal included in the handwritten list were validly devised under section 2.3 or were instead "furnishings," subject to section 2.1. On September 19, the district court ruled that the items in question were not "furnishings" and should be distributed to testator's children. In its accompanying memorandum, the court observed that sections 2.1 and 2.3 of the will were inconsistent. The court concluded that testator intended his children to have, immediately upon his death, all items on the handwritten list, not just the dishes, china, silver, and crystal (the items mentioned in the personal representative's petition). Confronted with the court's memorandum, wife moved for a revision of the court's order. In response, testator's children requested a distribution of all items on the handwritten list.[2]

On October 29, the district court denied wife's motion for revision and expressly ordered that all items on the handwritten list be delivered to testator's children. Wife appealed and then moved the district court to vacate the October 29 order. The district court denied wife's motion, stating that, because of the appeal, it was without jurisdiction to vacate the order. Wife also appealed the refusal to vacate. This court granted wife's request to consolidate her two appeals.

D E C I S I O N

On appeal, wife argues that the personal representative's petition related only to the dishes, china, silver, and crystal and that the parties did not brief or argue the issue of testator's intent as to the remaining items on the handwritten list. As a result, wife argues, the district court was limited to ruling only on the dishes, china, silver, and crystal. We agree.

Minnesota courts have repeatedly held that relief must be based on issues raised by the pleadings or litigated by consent. E.g., Roberge v. Cambridge Coop. Creamery Co., 243 Minn. 230, 234, 67 N.W.2d 400, 403 (1954); Peters v. Mutual Benefit Life Ins. Co., 420 N.W.2d 908, 915 (Minn. App. 1988); Shandorf v. Shandorf, 401 N.W.2d 439, 442 (Minn. App. 1987); see also Hurr v. Davis, 155 Minn. 456, 459, 193 N.W. 943, 944 (1923) (judgment that determines matters upon which parties were not heard is void for want of jurisdiction).

The dishes, china, silver, and crystal were the only items before the district court on the petition for construction. Although we understand that the memorandum attached to the court's order explains how the court arrived at its determination, it cannot serve as a basis for an order providing relief beyond that which was originally requested. The petition applied only to the dishes, china, silver, and crystal. The

district court was without authority to rule on any other items from the handwritten list. We therefore vacate the October 29, 1997, order.[3]

Vacated.

[ ]1 These provisions of testator's will were allegedly written to be consistent with a premarital agreement between testator and wife.

[ ] 2 We note that, pursuant to the district court's order of September 19, the dishes, china, silver, and crystal have already been delivered to testator's children.

[ ] 3 Wife raises other issues and also challenges the district court's denial of her motion to vacate. These need not be addressed in light of our resolution of the issue decided.