                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A14-1799

                                    In re the Estate of:
                               Leonard J. Marihart, Decedent

                                      Filed June 8, 2015
                                          Affirmed
                                        Worke, Judge

                              Big Stone County District Court
                                  File No. 06-PR-13-227

Paul A. Marihart, Duluth, Minnesota (pro se appellant)

Norman M. Abramson, Sheryl G. Morrison, Joy R. Anderson, Gray, Plant, Mooty &
Bennett, P.A., Minneapolis, Minnesota (for respondent Angeline Nosbusch)

         Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the district court’s construction of a will, arguing that the

district court erred in considering extrinsic evidence because the will is unambiguous.

Appellant further argues that the district court should have awarded him reimbursement

for litigation expenses. We affirm.
                                     DECISION

Ambiguity

      Appellant Paul Marihart (Marihart) argues that the district court misconstrued the

will of his great-uncle, Leonard J. Marihart (the decedent). Marihart asserts that the

district court “erred by not reading [the decedent’s] [w]ill using [the decedent’s] words

and provisions.” In essence, Marihart argues that the language of the decedent’s will was

unambiguous and properly reflected the decedent’s intent in distributing his estate; thus,

the district court should have examined only the text of the will without considering

extrinsic evidence. Whether a will is ambiguous is reviewed de novo. In re Trust of

Shields, 552 N.W.2d 581, 582 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

      Marihart’s argument fails for two reasons. First, he may not bring this claim on

appeal because he argued the opposite below. Before the district court, Marihart sought

to interpret the language of the will so that he and his fellow objectors fit within that

language. Marihart now contends that the will is unambiguous and the language as

written should control. “It is elementary that on appeal a case will be considered in

accordance with the theory on which it was pleaded and tried, and a party cannot for the

first time on appeal shift his position.” Sec. Bank of Pine Island v. Holst, 298 Minn. 563,

564, 215 N.W.2d 61, 62 (1974) (quotation omitted); see Thiele v. Stich, 425 N.W.2d 580,

582 (Minn. 1988) (“A reviewing court must generally consider only those issues . . .

presented and considered by the [district] court”; “[n]or may a party obtain review by

raising the same general issue litigated below but under a different theory.” (quotation

omitted)).


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       Second, the district court properly concluded that the decedent’s will was

ambiguous. “A latent ambiguity in a will . . . may arise . . . when the will contains a

misdescription of the object or subject, as whe[n] there is no person or thing in

existence.” In re Estate of Arend, 373 N.W.2d 338, 342 (Minn. App. 1985) (quoting In

re Pope’s Estate, 91 Minn. 299, 306, 97 N.W. 1046, 1048 (1904)). A district court may

consider extrinsic evidence to resolve an ambiguity. Id. The decedent’s will describes

bequests to his “children” when none exist; it describes bequests to his “descendants”

when none exist. A will that refers to nonexistent persons is ambiguous.

       Marihart argues that Article 2.2, which would govern distributions to “children,”

and Article 3.2, which would govern distributions to “descendants,” are unambiguous

because the decedent intended them to be inoperative.          Marihart contends that the

decedent intended Article 3.3, which governs distribution of any residuary, to control the

distribution of his estate. Marihart’s argument is unsupported by any legal authority. It

also stretches credulity: according to Marihart, not only did the decedent intentionally

add (or, at best, purposely leave in place) inoperative articles in his will, he also

intentionally added meaningless definitions that applied only to those inoperative articles.

In other words, the decedent added provisions about nonexistent persons and also

specifically defined particulars about those nonexistent persons: Article 6 of the will lays

out definitions, one of which applies only to Article 3.2. Marihart’s argument simply

cannot be sustained, particularly when a reasonable alternative explanation is that some

boilerplate language was employed in drafting (a possibility noted by an expert on wills

who testified at trial). In addition, some confusion existed as to whether the decedent


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intended to refer to his step-children—within the four corners of the will itself, it refers to

“my step-daughter” (legally proper because he had step-children) but also “my son-in-

law” (legally improper because he did not have a son-in-law).

       The district court properly concluded that the will was ambiguous and

appropriately considered extrinsic evidence. Marihart has not challenged the district

court’s interpretation of the extrinsic evidence.

Litigation expenses

       Marihart also argues that the district court should have awarded the objectors their

cost of objecting. A district court’s denial of litigation expenses is reviewed for abuse of

discretion. See In re Estate of Anderson, 654 N.W.2d 682, 688 (Minn. App. 2002),

review denied (Minn. Feb. 26, 2003) (referring to denial of attorney fees).

       The district court’s judgment must be affirmed because Marihart points to no

expenses of any kind incurred as a result of this litigation. There is no basis in the record

upon which to justify any reimbursement. See In re Stisser Grantor Trust, 818 N.W.2d

495, 508 (Minn. 2012) (stating that “the complete lack of evidence supporting [the] claim

[for compensation of expenses] leaves us in no position to question the [district] court”).

       Affirmed.




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