may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
The Estate of Raymond A. Johnson,
Filed March 9, 1999
Affirmed; motion granted
Wright County District Court
File No. P7-97-2304
David J. Lenhardt, Gries & Lewnhardt, P.L.L.P., 100 E. Central Ave., P.O. Box 35, St. Michael, MN 55376 (for respondent personal representative Johnson)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
Mark and David Mesick appeal from an order allowing the final account and settling the estate of Raymond A. Johnson, decedent. Because the district court did not err in ruling that the decedent's will is unambiguous and that the entire residuary estate should pass to the decedent's heirs-at-law, not to appellants, we affirm.
When interpreting a will, a court must attempt to ascertain the actual intent of the testator as it appears from a full and complete consideration of the entire will. Zagar, 491 N.W.2d at 916. The plain language of a will cannot be ignored to prevent an undesirable result. In re Cosgrave's Will, 225 Minn. 443, 449, 31 N.W.2d 20, 25 (1948).
The decedent executed his will in November 1993. Under article three, the decedent gave the residue of his estate as follows:
3.1 To BERNICE MESICK, if she survives me, per stirpes; orBernice Mesick died in May 1997, and the decedent died four months later in September 1997. Appellants argue that section 3.1 of the will is ambiguous because it could mean either (1) "To Bernice Mesick, but only if she survives me," or (2) "To Bernice Mesick, and if she does not survive me, to her descendants." Respondent counters that although he requested that the district court construe the will and that he initially referred to section 3.1 as ambiguous, his position has always been that the decedent intended Bernice Mesick to take under the will only if she survived him and that because Bernice Mesick did not survive the decedent, section 3.2 should control to dispose of the decedent's estate.
3.2 If any interest is not effectively disposed of by the preceding provisions of this article, then to my heirs-at-law.
The district court ruled that the will was not ambiguous, that the gift to Bernice Mesick under section 3.1 "fails because Bernice Mesick predeceased" the decedent, and that under section 3.2 the estate must be distributed to the decedent's heirs-at-law. The will defines "per stirpes" as meaning
in equal shares among living children of the person whose descendants are referred to and the descendants, taken collectively, of each deceased child of such person, with such deceased child's descendants taking by right of representation the share of such deceased child.
With no direct reference to descendents of Bernice Mesick, the language "per stirpes" here is meaningless.
Although this reading of the will renders the "per stirpes" language superfluous, it is discarded only because no meaning can be given it. See In re Comstock's Will, 219 Minn. 325, 333, 17 N.W.2d 656, 661 (1945). We therefore conclude that the district court's interpretation of the will was correct based on its plain language. Cf. Hartman's Estate, 347 N.W.2d at 484-85 (language "another child, or children, of my said daughter" not ambiguous when plain or usual meaning does not include "grandchildren" and when neither provisions of will as whole nor surrounding circumstances warrant contrary conclusion).
Affirmed; motion to strike granted.