This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-98-1497

In Re: Estate of Kristie Lynn Danca, Deceased.

Filed April 20, 1999

Affirmed

Halbrooks, Judge

Anoka County District Court

File No. P89713373

David A. Cossi, William F. Huefner, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellants)

Douglas B. Meslow, Meslow & Olson, P.L.L.C., 2125 2nd Street, White Bear Lake, MN 55110 (for respondent)

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

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

HALBROOKS, Judge

Appellants seek review of the district court's order disallowing a probate claim. Appellants allege the district court misapplied Minn. Stat. § 524.2-804 (1998). Because we conclude the district court accurately assessed and effectuated testator's intent as evidenced by the will and the circumstances surrounding its execution, we affirm.

FACTS

Kristie L. Danca (testator) died on August 28, 1997. When she died, she was not married and had no children. She executed her will on July 7, 1978, while married to Stephen Danca. Testator's marriage to Stephen Danca was dissolved on July 15, 1996. Appellants Sam and Dorothy Danca are ex-husband Stephen Danca's parents. Appellants filed a claim against testator's estate relying on article III of testator's will. Respondents, personal representatives of testator's estate, disallowed the claim.

Testator's will, article III, provided the residue of her estate, after debts, expenses and taxes would go to her "husband, Stephen John Danca," if he survived her. The will contained the following alternate residuary clause:

If my husband predeceases me, I give the residue referred to in Article III one-half (1/2) unto the heirs-at-law of my husband and one-half (1/2) unto my heirs-at-law.

Testator's husband executed a will with reciprocal terms on the same date.

Appellants petitioned the district court for allowance of a claim previously disallowed. The district court denied appellants' petition. This appeal followed.

D E C I S I O N
When construing a will, the 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 of the will.

In re Will of Hartman, 347 N.W.2d 480, 482-83 (Minn. 1984). Where the material facts are not in dispute, a reviewing court need not defer to the trial court's application of the law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

Minn. Stat. § 524.2-804 provides:

If after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes any disposition or appointment of property made by the will to the former spouse * * *. Property prevented from passing to a former spouse because of revocation by dissolution of marriage or annulment passes as if the former spouse failed to survive the decedent * * *.

Appellants argue that the statute unambiguously applies to the case at hand. The statute requires that the devise prevented from passing to the ex-husband must pass as if he predeceased the testator. Under the terms of the alternate residuary clause, the entire residue would then be split between testator's heirs-at-law and appellants.

In support of their claims, appellants rely on In re Estate of Kerr, 520 N.W.2d 512, 514 (Minn. App. 1994) (interpreting Minn. Stat. § 524.2-508 (1992)[1]), review denied (Minn. Oct. 14, 1994). In Kerr, this court held dissolution did not revoke a specific devise to a named stepdaughter. Id. The term "stepdaughter," paired with a name, was construed as a descriptive term rather than a limiting term. Id. The court was unwilling to "engage in speculation regarding what the testator would have intended had he foreseen a change in circumstances." Id. at 515 (citing Hartman, 347 N.W.2d at 484).

But, unlike Kerr, the instant case involves a devise to a class, the members of which were impossible to predict at the time of the will's execution and were defined solely by their relationship to the ex-husband. While the testamentary intent with respect to the stepdaughter in Kerr was evidenced to some degree by the fact that she was identified by name, testamentary intent with respect to a class gift is less clear.

This issue has been addressed by the California Court of Appeals in Hermon v. Urteago, 46 Cal. Rptr.2d 577 (Cal. Ct. App. 1995), review denied (Cal. Feb. 15, 1996). In Hermon, the will, executed during marriage, passed the residue to testator's spouse, if she survived him, and, if not, to "my children and my spouse's children." Id. at 578-79. The marriage was dissolved prior to testator's death. Id. at 578. The court distinguished class gifts from gifts to named persons, characterizing the former as "signalling the testator's paramount intention to describe the beneficiaries not as individuals but as members of a group identified by familial ties." Id. at 581.

Appellants argue testator's intent that they should receive the property is evidenced by testator's continued relationship with appellants after the divorce. But this devise was not made based on any relationship with testator, it was based only on the relationship to the ex-husband. Furthermore, testator's intent prior to death is not relevant to our inquiry; when construing a will, we look to the circumstances at the time the will was executed. Hartman, 347 N.W.2d at 482-83.

Appellants further argue that if the legislature so intended, it could have revoked all gifts to relatives of an ex-spouse when it amended the code in 1995. See Unif. Probate Code § 2-804 (amended 1993), 8 U.L.A. 217 (1998) (revoking all testamentary gifts to an ex-spouse's relatives). We are not persuaded legislative inaction reveals a legislative intent to benefit relatives of an ex-spouse where to do so is contrary to testator's intent.

One of the central purposes of Minn. Stat. chs. 524, 525 (1998), is "to discover and make effective the intent of a decedent in distribution of property." Minn. Stat. § 524.1-102(b)(2) (1998). Indeed, the "principle purpose of construing a will is to ascertain the testator's intent at the time of execution." Kerr, 520 N.W.2d at 514 (citing In re Will of Wyman, 308 N.W.2d 311, 315 (Minn. 1981)). Here the testator's intent is readily ascertainable by examining the will and the circumstances surrounding its execution. See Hartman, 347 N.W.2d at 483 (holding the court is to "put itself in the position of the testator at the time the will was executed").

This case involves former spouses with reciprocal wills. As the district court ascertained, testator and her ex-spouse intended to be married until "death do they part." Then, after both of the spouses had died, their property would be equally divided between their respective families under the terms of the alternate residuary clause. But their marriage ended in dissolution rather than death. As the district court observed, their assets were divided at the time of the dissolution. To now distribute another share of testator's property to her ex-spouse's family would be contrary to the intent demonstrated by the will and surrounding circumstances at the time of execution.

Affirmed.

[1] Minn. Stat. § 524.2-508 was amended in 1995. 1995 Minn. Laws ch. 130, § 12. The language regarding revocation of gifts after dissolution was renumbered without any changes as Minn. Stat. § 524.2-804. 1995 Minn. Laws ch. 130, § 13.