This opinion will be unpublished and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

C6-98-1883

In Re:

The Estate of Raymond A. Johnson,

Decedent.

Filed March 9, 1999

Affirmed; motion granted

Klaphake, Judge

Wright County District Court

File No. P7-97-2304

Jeffrey P. Scott, Maser & Amundson, P.A., 6600 France Ave. S., Ste. 425, Edina, MN 55435 (for appellants Mesick)

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.

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

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.

D E C I S I O N

I.

Respondent Kenneth C. Johnson, the personal representative of the estate and one of the decedent's heirs-at-law, moves to strike statements in appellants' brief as not part of the record. These statements, which suggest that the decedent "enjoyed a close relationship" with appellants and their mother, Bernice Mesick, were not presented to the district court by affidavit or otherwise considered by the court in reaching its decision. We therefore grant respondent's motion to strike. See Krueger v. Washington Federal Sav. Bank, 406 N.W.2d 543, 545 (Minn. App. 1987) (appellate court will not consider factual allegations in brief not presented to trial court by affidavit or verified pleading).

II.

The issue of whether language in a will is ambiguous is one of law that this court reviews de novo. In re Estate of Zagar, 491 N.W.2d 915, 916 (Minn. App. 1992). A will is ambiguous if, on its face, it suggests more than one interpretation. In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985). "If there is no ambiguity or equivocation when the will is read as a whole, * * * extrinsic evidence is not admissible." In re Hartman's Trust, 347 N.W.2d 480, 483 (Minn. 1984); see also In re Campbell's Trusts, 258 N.W.2d 856, 864 (Minn. 1977).

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; or

3.2 If any interest is not effectively disposed of by the preceding provisions of this article, then to my heirs-at-law.

Bernice 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.

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.