                          This opinion will be unpublished and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
                                     A15-1033

                           In re the Estate of: Edward D. Kane
                          a/k/a Edward Donald Kane, Decedent.

                                  Filed April 25, 2016
                    Affirmed in part, reversed in part, and remanded
                                      Hooten, Judge

                               Rice County District Court
                                File No. 66-PR-13-2646

John R. Neve, Evan H. Weiner, Neve Webb, PLLC, Edina, Minnesota (for appellant)

Mary L. Hahn, Barbara K. Lundergan, Hvistendahl, Moersch, Dorsey & Hahn, P.A.,
Northfield, Minnesota (for respondents)

      Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and

Klaphake, Judge.

                         UNPUBLISHED OPINION

HOOTEN, Judge

      In this probate appeal, appellant argues that the district court abused its discretion

by determining that the extrinsic evidence offered at trial was insufficient to cure an

ambiguity in decedent’s will and by awarding respondents attorney fees and costs from

decedent’s estate. We conclude that the district court properly awarded attorney fees and




 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
costs to respondents. But, we also conclude that the district erred by determining that the

credible and undisputed extrinsic evidence offered at trial was insufficient to determine

decedent’s intent and to cure the ambiguity in his will. Accordingly, we affirm in part,

reverse in part, and remand.

                                         FACTS

       Edward D. Kane (decedent) died on May 24, 2010. He lived in Minnesota at the

time he executed his will on June 22, 1989, and up until the time of his death. Decedent’s

wife, Gene Kane, died on October 22, 2011. The couple had three surviving children:

appellant Jeane Kane, who is decedent’s successor personal representative, and

respondents Raymond Kane and James Kane. Throughout her parents’ lives and up until

the present, appellant has resided in Minnesota. Raymond left Minnesota in 1967, James

left Minnesota in 1971, and they both presently live in Tennessee.

       On October 22, 2013, appellant filed a petition for determination of descent, seeking

a declaration that decedent died testate and that his June 22, 1989 will was valid and

unrevoked. On November 15, 2013, respondents filed an objection and cross-petition for

determination of descent. On April 8, 2014, respondents filed an objection and amended

cross-petition.

       Attached to her petition, appellant submitted a document that purported to be

decedent’s original will, which was dated June 22, 1989. Paragraph 2.2 of decedent’s will

stated: “I give and devise to my wife, Gene C. Kane a life estate in my real property which

is described in the attached [e]xhibit ‘A’, with the remainder over to my daughter,

[appellant], or her survivors per stirpes.” (Emphasis added.) However, exhibit A was not


                                             2
attached to the will that was filed for probate. Decedent’s will also provided that the

residue of his estate would pass to Gene Kane. Gene Kane’s will, which was prepared at

the same time and by the same attorney who prepared decedent’s will, provided that any

property she owned at the time of her death would be divided equally among her three

children.

       In 1977, decedent inherited from his parents a 120-acre farm in Rice County.

Decedent’s family had owned the farm since 1892. At the time decedent’s will was drafted

in 1989, this was the only real property that he owned, and he owned it as one parcel. In

1998, he sold a 4.1-acre parcel of the farm on which the house, barn, and outbuildings were

situated. The remaining 115.9 acres of farmland were rented out. At the time of his death

on May 24, 2010, decedent owned 115.9 acres of farmland. The farmland was titled in

decedent’s name alone. This was the only real property that decedent owned at the time of

his death, and he owned it as one parcel.

       In her petition, appellant argued that, pursuant to paragraph 2.2 of decedent’s will,

she “now possesses the remainder interest in the [farmland].” In their objection and

amended cross-petition, respondents countered that paragraph 2.2 of the will failed because

the will lacked exhibit A, the farmland passed to Gene Kane through the residuary clause

of decedent’s will, and the farmland now passes to all three children equally under Gene

Kane’s will.   Based on these grounds, respondents moved for summary judgment.

Appellant filed a memorandum in opposition, arguing that because there was no exhibit A,

paragraph 2.2 of the will was ambiguous and extrinsic evidence should be allowed to

determine decedent’s intent.     Appellant also argued that decedent intended through


                                             3
paragraph 2.2 to devise all of his real property to her, while respondents argued that

decedent intended to devise less than all of his real property to her.

       On June 17, 2014, the district court denied respondents’ motion for summary

judgment, concluding that the phrase, “my real property,” in paragraph 2.2 of the will was

ambiguous as to whether decedent intended to devise all of his real property, or only a

portion of it, to Gene Kane in a life estate and subsequently to appellant in fee. The district

court determined that there was a genuine issue of material fact as to “whether [e]xhibit A

was ever prepared and what it might have stated if it was.”

       A two-day bench trial was held in October 2014. The main issue at trial was the

interpretation of paragraph 2.2 of the will based on extrinsic evidence. The district court

heard testimony from appellant, respondents, the parties’ first cousin,1 and James Keating,

the attorney who prepared the wills for decedent and Gene Kane. The only witness who

had firsthand knowledge of the circumstances surrounding the drafting of decedent’s will

was Keating. Keating had originally retained a copy of decedent’s will, but destroyed all

of his files when he retired.

       Keating testified that he believed he had two meetings with decedent and Gene Kane

regarding their wills. He testified that, at the first meeting, decedent stated that his plan for

distribution was a life estate in “all of his real property” to Gene Kane, with the remainder

to be left to appellant, “to the exclusion of [respondents].” The district court found that


1
  The parties’ first cousin testified in support of respondents’ contention that decedent
revoked the devise in paragraph 2.2 of his will near the end of his life. But, the district
court concluded that respondents did not prove by a preponderance of the evidence that
decedent revoked the devise. Respondents do not challenge this conclusion.

                                               4
Keating’s testimony regarding the first meeting was credible. The district court also found

“Keating’s testimony regarding [decedent’s] wishes to be credible.”

       Keating also testified that if decedent had told him that he wanted to bequeath only

a portion of his real property to appellant, Keating would have used different language in

paragraph 2.2, to wit: “in that portion of my real property.” (Emphasis added.) Keating

testified that rather than including a legal description of real property in the body of a will,

he would typically attach it to the will as an exhibit. He believed that exhibit A was

originally attached to the will. But, Keating did not specifically remember if decedent had

provided a photocopy of a legal description of the real property that was attached as exhibit

A or if his office had actually prepared an exhibit A. Moreover, Keating did not specifically

remember reviewing a legal abstract for the real property. The district court found that

Keating’s testimony was credible as to his typical practice, “but was not specific to

[decedent’s will].”

       The district court concluded that the extrinsic evidence admitted at trial did not cure

the ambiguity in paragraph 2.2 of the will because the lack of exhibit A was a “material

omission,” and the district court therefore concluded that paragraph 2.2 failed. Because

the specific devise in paragraph 2.2 failed, the district court determined that decedent’s real

property passed by way of the residue clause of his will to Gene Kane and thereafter equally

to their three children, as tenants in common, through Gene Kane’s will. In addition, the

district court awarded to respondents farm rents from 2011 to 2014, which amounted to a

$60,463.33 judgment against appellant personally.




                                               5
       Respondents moved for attorney fees and costs from decedent’s estate pursuant to

Minn. Stat. § 524.3-720 (2014). The district court granted the motion and awarded attorney

fees and costs to respondents in the amount of $50,869.67. This appeal followed.

                                      DECISION

                                              I.

       Appellant argues that the district court abused its discretion by concluding that the

extrinsic evidence offered at trial was insufficient to cure the ambiguity in decedent’s will.

“The primary purpose of construing a will is to discern the testator’s intent.” In re Estate

& Trust of Anderson, 654 N.W.2d 682, 687 (Minn. App. 2002), review denied (Minn. Feb.

26, 2003); see also Restatement (Third) of Prop.: Wills and Other Donative Transfers

§ 10.1 (2003) (“The controlling consideration in determining the meaning of a donative

document is the donor’s intention. The donor’s intention is given effect to the maximum

extent allowed by law.”). “[W]e determine the testator’s intent from a full and complete

consideration of the entire will.” In re Estate of Lund, 633 N.W.2d 571, 574 (Minn. App.

2001); see In re Trust of Shields, 552 N.W.2d 581, 582 (Minn. App. 1996) (“In construing

a will, the cardinal rule is that the testator’s intention is to be gathered from the language

of the will itself.” (quotation omitted)), review denied (Minn. Oct. 29, 1996).

       “Whether a will is ambiguous is a question of law that this court reviews de novo.”

Shields, 552 N.W.2d at 582. A will is ambiguous if the language of the will on its face

suggests more than one interpretation or if the surrounding circumstances reveal more than

one interpretation even though the language is clear on its face. In re Estate of Arend, 373

N.W.2d 338, 342 (Minn. App. 1985); see also Restatement (Third) of Prop.: Wills and


                                              6
Other Donative Transfers § 11.1 (“An ambiguity in a donative document is an uncertainty

in meaning that is revealed by the text or by extrinsic evidence other than direct evidence

of intention contradicting the plain meaning of the text.”). If there is no ambiguity,

extrinsic evidence is not admissible. In re Trusts of Hartman, 347 N.W.2d 480, 483 (Minn.

1984). However, if ambiguity “exist[s] in the will[,] extrinsic evidence may be admitted

to resolve the ambiguity.” Arend, 373 N.W.2d at 342; see also Restatement (Third) of

Prop.: Wills and Other Donative Transfers § 11.2 cmt. b (“Because the primary objective

of construction is to give effect to the donor’s intention, extrinsic evidence relevant to the

donor’s intention may be considered along with the text of the document in seeking to

determine the donor’s intention.”).

       The district court correctly concluded that paragraph 2.2 of the will is ambiguous

on its face because it refers to real property as described in exhibit A, but exhibit A is not

attached. There is no ambiguity as to whom decedent intended his real property to pass,

because the devise refers only to Gene Kane and appellant. But, it is unclear from the

language of the will what real property decedent intended to devise to appellant because a

description of the real property was not attached to the will as exhibit A at the time that the

will was filed for probate.

       Whether the district court erred by concluding that the extrinsic evidence offered at

trial was insufficient to determine decedent’s intent and to cure the ambiguity in decedent’s

will presents a mixed question of law and fact.

                     In an appeal from a bench trial, we do not reconcile
              conflicting evidence. We give the district court’s factual
              findings great deference and do not set them aside unless


                                              7
              clearly erroneous. However, we are not bound by and need not
              give deference to the district court’s decision on a purely legal
              issue. When reviewing mixed questions of law and fact, we
              correct erroneous applications of law, but accord the [district]
              court discretion in its ultimate conclusions and review such
              conclusions under an abuse of discretion standard.

Porch v. Gen. Motors Acceptance Corp., 642 N.W.2d 473, 477 (Minn. App. 2002)

(quotation and citations omitted), review denied (Minn. June 26, 2002). “A district court

abuses its discretion by resolving the matter in a manner that is against logic and the facts

on record.” Beardsley v. Garcia, 731 N.W.2d 843, 848 (Minn. App. 2007) (quotation

omitted), aff’d, 753 N.W.2d 735 (Minn. 2008). “Findings of fact are clearly erroneous

only if the reviewing court is left with the definite and firm conviction that a mistake has

been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999)

(quotation omitted). We defer to the district court’s credibility determinations. Vangsness

v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

       The district court determined that Keating’s testimony regarding decedent’s

donative intent was credible. Keating unequivocally testified that decedent intended

through paragraph 2.2 of the will to devise the entirety of his farmland to appellant, subject

to the life estate of Gene Kane, and to the exclusion of respondents. Respondents presented

no evidence to dispute this testimony. Keating also testified that, consistent with his

standard practice in drafting wills, if decedent had intended to devise only a portion of his

farmland to appellant, Keating would have drafted paragraph 2.2 to read: “I give and devise

to my wife, Gene Kane, a life estate in that portion of my property described [in] [e]xhibit




                                              8
A.” (Emphasis added.) Keating added that the term “my real property” in paragraph 2.2

“means all of [decedent’s] property, all of his real property.”

       The district court determined that Keating’s testimony “was credible and detailed

as to his regular practice” of preparing wills. Keating testified that it was his practice to

have two meetings with his clients. At the first meeting, he would discuss with the client

what the client wanted the will to say. If Keating was preparing a will that required a legal

description of real property to be attached, his practice was to have the client bring the legal

description into his office after the first meeting.       Keating explained that the legal

description would be an abstract or some other document that described the real property.

Rather than retyping the legal description into the body of the will, he would attach it to

the will as an exhibit so that no mistakes would be made in retyping the description. After

the first meeting, Keating would prepare the will in conformity with the client’s intent and

would then mail it to the client for review. At the second meeting, Keating would discuss

the will with the client, verify that the will was correctly drafted, and correct any errors.

Then the client and witnesses would sign the will.

       The district court also determined that Keating’s testimony about his first meeting

with decedent and Gene Kane was credible. Regarding this first meeting, Keating testified

that (1) decedent’s “plan was to transfer a life estate to his wife in his farmland, and the

remainder of that property was to go to [appellant] to the exclusion of [respondents],” and

(2) decedent did not tell Keating that he wanted to devise only “part” of his farmland to

appellant. It is undisputed that decedent owned only one parcel of real property at the time

he executed his will in 1989 and at the time he died in 2010: the farmland.


                                               9
       Based upon this direct extrinsic evidence of decedent’s intent, which the district

court explicitly found was credible, along with the absence of any contrary evidence, we

conclude as a matter of law that, on this record, appellant proved by a preponderance of

the evidence that decedent intended through paragraph 2.2 of his will to devise the entirety

of his real property to appellant. See Restatement (Third) of Prop.: Wills and Other

Donative Transfers § 11.2 cmt. o (“Once the donor’s intention is established by a

preponderance of the evidence, the [will] is construed in accordance with that intention.”);

see also Rixmann v. City of Prior Lake, 723 N.W.2d 493, 495 (Minn. App. 2006) (“In civil

actions, the standard of proof required is generally a fair preponderance of the evidence.”),

review denied (Minn. Jan. 24, 2007); cf. Minn. Stat. § 524.3-407 (2014) (providing that in

contested cases, “[p]roponents of a will have the burden of establishing prima facie proof

of due execution”). This conclusion is consistent not only with the credible extrinsic

evidence produced at trial, but also with the language of the will itself. See In re Estate of

Cole, 621 N.W.2d 816, 819 (Minn. App. 2001) (“Extrinsic evidence is to be used to

determine what the testator meant by the words used, not to determine an intent that cannot

be found in the words employed in the instrument.”).

       Notwithstanding this clear, credible, and undisputed evidence of decedent’s intent

and of Keating’s standard practices in drafting wills, the district court concluded that the

extrinsic evidence admitted at trial did not clarify whether decedent intended to devise all

of his real property, or only a portion of it, to Gene Kane in a life estate and subsequently

to appellant. The district court based this conclusion on the fact that Keating did not

specifically remember (1) preparing exhibit A to decedent’s will; (2) what type of


                                             10
description (a legal abstract or some other description) of decedent’s property exhibit A

would have contained; or (3) indeed, whether exhibit A was ever actually attached to the

will. The district court concluded that the missing exhibit A was a “material omission” in

the will and therefore that paragraph 2.2 failed.

       But, in light of the clear, credible, and undisputed evidence of decedent’s intent,

Keating’s usual practices in preparing wills, and the fact that decedent owned only one

parcel of land, we conclude that the district court erred by determining that the missing

exhibit A was a “material omission.” See Restatement (Third) of Prop.: Wills and Other

Donative Transfers § 11.2 cmt. o. Although Keating did not specifically remember the

contents of the legal description in exhibit A, or whether he actually attached exhibit A to

the will, he was adamant that he “prepared the will consistent[ly] with [decedent’s]

wishes.” There is no evidence in the record to raise any reasonable inference that Keating’s

preparation of decedent’s will, including his preparation of exhibit A, departed from his

usual practices. See Minn. R. Evid. 406 (“Evidence of the habit of a person . . . is relevant

to prove that the conduct of the person . . . on a particular occasion was in conformity with

the habit . . . .”). And, Keating unequivocally testified that at the first meeting, decedent

stated that his intent was to devise all of his farmland to appellant, who lived in Minnesota,

and to exclude respondents, who lived in Tennessee. By dropping paragraph 2.2 from the

will, the district court abused its discretion because its conclusion that the extrinsic

evidence offered at trial was insufficient to determine decedent’s intent and to cure the

ambiguity in his will “is against logic and the facts on record.” Beardsley, 731 N.W.2d at




                                             11
848. Moreover, by not effectuating decedent’s intent, the district court undermined “[t]he

primary purpose of construing a will.” Anderson, 654 N.W.2d at 687.

       Respondents argue that the district court did not abuse its discretion, relying on In

re Trust of Cosgrave, in which the Minnesota Supreme Court stated: “In construing a will,

the cardinal rule is that the testator’s intention is to be gathered from the language of the

will itself. Conversely, intention which the testator may have had, but did not express in

his will, cannot be considered.” 225 Minn. 443, 448–49, 31 N.W.2d 20, 25 (1948)

(citations omitted). Cosgrave is inapposite, however, because that case did not involve

ambiguous language in a will. See id. at 449–51, 31 N.W.2d at 25–26. Rather, in

Cosgrave, the Minnesota Supreme Court interpreted language in a will that was “plain”

and “clear beyond doubt.” See id. Here, unlike in Cosgrave, there was an exhibit missing

from the will, which created an ambiguity as to the real property that decedent devised, and

this ambiguity was resolved by the credible and undisputed extrinsic evidence of

decedent’s intent that was produced at trial.

       We reverse the district court’s decision as to the distribution of decedent’s real

property and remand for the district court to award appellant the real property in its entirety.

Because respondents are not entitled to farm rents from 2011 to 2014, we also reverse the

district court’s award of farm rents to respondents.

                                                II.

       Appellant next argues that the district court abused its discretion by awarding

respondents attorney fees and costs from decedent’s estate. We review a district court’s

order regarding attorney fees for an abuse of discretion. In re Estate of Torgersen, 711


                                                12
N.W.2d 545, 550 (Minn. App. 2006), review denied (Minn. June 20, 2006). We will not

set aside the district court’s findings of fact unless they are clearly erroneous. Minn. R.

Civ. P. 52.01.

       Under Minnesota law, attorney fees and expenses may be paid from the estate under

certain circumstances. Minn. Stat. § 524.3-720. In pertinent part, the statute reads:

                 [W]hen, and to the extent that, the services of an attorney for
                 any interested person contribute to the benefit of the estate, as
                 such, as distinguished from the personal benefit of such person,
                 such attorney shall be paid such compensation from the estate
                 as the court shall deem just and reasonable and commensurate
                 with the benefit to the estate from the recovery so made or from
                 such services.

Id.

       Appellant argues that “[r]espondents have done nothing to benefit the estate.

Instead, their work at the [d]istrict [c]ourt benefited solely themselves.” Respondents

counter that they benefitted the estate because they “facilitated the district court’s

construction of an ambiguous instrument.”

       In Torgersen, we stated that the public policy underlying section 524.3-720

“recognize[s] that an estate as an entity is benefited when genuine controversies as to the

validity or construction of a will are litigated and finally determined.” 711 N.W.2d at 555

(quotation omitted). And, in Gellert v. Eginton, we stated that “‘a fiduciary acting on

behalf of the estate, in good faith, [should be able to] pursue appropriate legal proceedings

without having to risk personal financial loss by underwriting the proceeding’s expenses.’”

770 N.W.2d 190, 197 (Minn. App. 2009) (quoting Torgersen, 711 N.W.2d at 555), review

denied (Minn. Oct. 20, 2009). We rejected the argument that, in order to contribute to the


                                                13
benefit of the estate, interested persons must not themselves benefit from the proceedings.

Id. at 197–98.

      The district court implicitly found that respondents pursued their claim for the

benefit of the estate and that the amount awarded was “just and reasonable and

commensurate with the benefit to the estate.” See Minn. Stat. § 524.3-720. These findings

are not clearly erroneous because a trial was necessary to determine decedent’s intent in

paragraph 2.2 of the will. We conclude that the district court did not abuse its discretion

by awarding respondents attorney fees and costs from the estate because a “genuine

controvers[y] as to the validity or construction of [the] will [was] litigated and finally

determined.” Torgersen, 711 N.W.2d at 555.

      Affirmed in part, reversed in part, and remanded.




                                            14
