*1 KERPER, Trustee of (Plaintiff), Appellant Trust No. Kerper, Ryan Kerper, Jill
Janeen
Lennon, Colby Lennon and (Plaintiffs),
Kara Bereman
v. Elsom, KERPER, Daniel
Meike William Falk, Romano, Tina
Teren John
Romano, Milodragovich, Inge Stana Alexander, Appel Taimi
Stander (Defendants).
lees Kerper, KERPER and Jill
Janeen (Plaintiffs),
Appellants
Loujen Kerper, Trustee of Trust Lennon, Colby Ryan Lennon
No. (Plaintiffs),
and Kara Bereman
v. KERPER, Elsom,
Meike Daniel William Falk, Romano, Tina
Teren John
Romano, Milodragovich, Inge Stana Alexander, Appel and Taimi Stander (Defendants).
lees Alexander,
Inge Taimi STANDER and (Defendants),
Appellants Elsom,
Meike Daniel William Falk, Romano, Tina
Teren John (De Milodragovich Romano and Stana
fendants),
v. KERPER, Trustee 1; Kerper;
Trust No. Jill Ker Lennon; Colby
per; Ryan Lennon and (Plaintiffs). Bereman, Appellees
Kara 87-244,
Nos. and 87-246. 87-245 Wyoming.
Supreme Court
Sept. *3 Burgess Wyatt James &
Robert Davis, Margaret Cody, and Sommers Cranfill, Cody, appellant McCarty for & Loujen Kerper. Redle, Arney, Toner of Yonkee &
Tom C. Sheridan, Inge appellants Stander and Taimi Alexander. Cal., Diego, pro se Kerper, San appellant Kerper. Jill counsel for Copenhaver, Kahl Copenhaver D.
Ross Kath, Powell, Kerper. Meike appellee & Simpson Kepler, Kepler of & Charles G. Lennon, Colby appellees Ryan Cody, for Bereman, Lennon, Teren Falk and Kara Kerper Romano. John THOMAS, II CARDINE, C.J., Before JJ., URBIGKIT, MACY, Kerper execute mu- Did Wes and Hazel BROWN, Ret. J. containing express and en- tual an wills disposition
forceable contract for and if such con- respective their estates CARDINE, Chief Justice. Kerper breach its tract existed did Wes declaratory judg- began This as lawsuit Kerper’s death? terms after Hazel brought Loujen Kerper as ment action Kerper family trust after trustee of the III herself and feelings developed between bad removing err in Lou- Did the trial court the use of her sister Meike about jen Kerper replacing her as trustee designated family Loujen was Cody cabin. Wyoming the First Bank of with independent trustee under also an an successor trustee of terms the trust? along beneficiary income of that trust *4 her three sisters. The trial court resolved reverse. We declaratory by order- judgment the action Kerper attor- Hazel and Wes were both ing: practiced many years in neys law for who daughters and Wyoming. They had four surcharges imposed 1. That be certain mi- grandchildren, ten three of whom were against Loujen original the trustee. as nors at the time of trial. imposed constructive trust 2. That a be 1974, Hazel, 1965 and Wes and Between on received from the estate assets Kerper, daughter, Loujen their executed (Wes) Kerper that the four
W.G. and incorporating numerous trust instruments Kerper Kerper the sisters reimburse amendments, supplements apparently the trust for assets received from Wes Kerper intending dispose of the assets Kerper estate. trust doc- under the trusts. The first Loujen Kerper 7,1965, ument, 3. That be removed as September pro- executed on corpus of the trust be dis- vided that the designated Kerper trust trustee of the daughters equal four in tributed to the corporate and that a trustee be substitut- expire by This trust was to its shares. ed. 1, 1967, September upon terms either on orders resulted in three trial court’s Loujen Kerper, the death of whichever oc- separate appeals. ap- In these consolidated Appellants introduced unre- curred first. peals following issues: we will address the original estate evidence that the butted trust, plan, as manifested in the 1965 alcoholism, changed of the later because instability marriage emotional troubled daughters. of one of the Kerper in- Did the settlors of the trust modify liability of the trustee tend to Kerper created other Hazel and Wes mismanaged in the event she trust as- trusts, supplements and amendments be- and 1974.1 The last trust in- tween 1965 sets? per daughters. Upon September the death of the last In addition to the 1965 trust and Hazel, daughter corpus Kerper and their die the trust was to the October daughter, Loujen Kerper, 1974 trust participated grandchildren per capita. also distributed following 30, 1972, May by Loujen the execution of the documents: b. A trust 15, 1967, Kerper concerning Bereman as trustee a.A trust executed December royalty grantors, Husky royalty. as This trust made that Hazel and Wes as trustee, covering subject terms of distribution de- into to the same assets to be transferred (a) paragraph provided above. It for semiannual scribed in the trust later. 30, 1972, May by Loujen A trust executed distribution of trust income to the four Ker- c. fourths, concerning royal- Kerper daughters equal upon as trustee per Bereman accruing Kerper publication daughter go to her ties to Hazel death of her fourth daughter to the Crimi- per stirpes. of her book titled “Introduction children If a deceased (book royalties). System" This nal Justice died without children then her fourth was to provided Kerper equally among surviving Jill Lennon was to Ker- that be divided a document executed Octo- estate and that the will was made in ac- strument was 1, 1974, by Kerper, as original understanding ber Wes and cordance with the settlors, as trustee. between Wes and Hazel B. superseded document recited that This set forth in their 1974 July wills. The previous trust It contained documents. 15, 1980 revoked will Wes’s will and language disposition the same found provided upon that the death of Wes Ker- instrument, September 1973 trust per, go the remainder of his estate would spendthrift provision pro- but added a daughters equal to his four shares. vacancy vided that the event of a occur- Kerper died on June 1981. No trustee, ring position in the a successor against contractual claims were filed appointed by the trustee would be surviv- by any of estate the beneficiaries of the ing daughters. trustee, trust or and there no were 25, 1974, May On Hazel and Wes objections to the petition made for decree containing the executed mutual wills same Kerper’s of distribution. Wes estate was respective terms of distribution for their distributed accordance with his will of provided estates. The wills the re- 15, 1980, July with the residue and remain- mainder of their estate be left in trust to der of his estate set over to the four Ker- under Trust No. 1 trustee dated daughters per equal shares. The decree to be added to and in the distribution estate was entered on corpus become of that trust. 21, 1982. October 1, 1974, Loujen Kerper After October Loujen Kerper proceeded to administer managed financial affairs according the trust terms through single trust, is, the October *5 1, agreement. October 1974 trust After 1, 1974 trust document. family disharmony, substantial filed she a 17, Kerper January Hazel died on 1975. complaint in the District Court of Park 22, 1976, July On the decree of distribution County, Wyoming, seeking declaratory a property of her estate distributed certain to judgment that she had acted in accordance Loujen Kerper, Kerper trustee of Trust making trust documents loans No. 1. to herself and had otherwise conducted the By Kerper the summer of 1980 Wes had properly. business of the trust Several remarry meeting decided to and called a Kerper Trust filed beneficiaries daughters in with his which he informed naming Loujen Kerper in counterclaim her change them that he desired to his will. defendant, capacity alleging as trustee as 15,1980, July agreement signed an On was that she had breached her duties and mis- by Kerper daughters. Wes and his four managed the trust. will, agreement provided The that a exe- Falk, by appellees After a motion Teren by cuted on that date Wes would Romano, Romano, property Kerper of his Tina control the distribution and John Stana assignment per beginning September receive month e. An and declaration of trust $>300 1, 1972, 1, ending September 11, 1973, July by daughter and 1974. Mon- executed Hazel ey remaining payments after those was to be concerning royalties Kerper receiva- transferred to and distributed in conformance “Legal publication ble from of a book titled paragraph with the terms of distribution Rights by written Hazel the Convicted" (a) above. royalties Kerper. of these were to Two-fifths d.An Amended Declaration of Trust No. 2 by Loujen Kerper pursuant be held 2, 1973, April concerning executed the book 30, May 1972 Amended Declara- terms of royalties. provided This trust for semiannual according distributed Trust No. 1 and tion of daughter payments Kerper $1800 to Jill to its terms. 1, through September Money Lennon remaining 1974. 1, Kerper f. Trust No. payments up $5400 after those 17, 1973, grant- by Kerper and Wes annually equal was to be distributed in three Loujen Kerper ors as trustee. Provisions daughters. Kerper shares to the other remaining Excess quoted cases are of this trust relevant to these payment $7200 after of that annu- opinion. later in the text of 30, ally May was to be transferred 1972 Amended Declaration of Trust No. 1 and dis- according tributed to its terms. undivided conveyance to them of their .Kerper, Meike Charles Milodragovich and Husky roy- oil in the guardian ad litem one-fourth interest appointed as Kepler was contingent alty. income benefi- for the minor of the trust. and remaindermen ciaries (2) to Declaration The Amendment guardian ad litem filed a counterclaim The Kerper by Loujen Trust No. 1 executed Kerper against the four crossclaim 80, 1972, effective May was not on Kerper had daughters alleging that Wes of Trust be- the 1965 Declaration amend in the 1974 the contract contained breached already 1965 declaration had cause the 15, executing July 1980 will in by wills pow- by no expired its terms because disposition of the changed he which modify reserved or had been er to amend guardian ad litem of his estate. The assets therefore, declaration; it was in the 1965 Kerper judgment against the four sought subject and not to amend- irrevocable convey requiring them to daughters ment or revocation. property they Kerper Trust No. all 15, (3) trust instru- The December Kerper estate still received from the Wes no “dry trust” because asset ment was a them, by pay Trust owned property transferred to the trust was equal to the fair market No. 1 an amount execution; therefore, the time of its at (the date of the on October value the 1967 trust was invalid in the decree of distribution Wes time the trust lack of a trust res at the estate) from the of all received created. The court determined that longer estate of no owned Wes consequence express of failed trust is a them. resulting by the trust held trustee guardian The ad litem filed a motion for settlors, the benefit judgment July summary on his claims Kerper. All and Hazel assets transfer- by the motion was resisted red and Hazel including grounds
trustee on several Septem- between December against arising the estate fact that a claim by the were determined ber to make a will had to be from a contract resulting subject to a court to be against independent action asserted in an Kerper and Hazel for the benefit of Wes estate the administrator or executor held Kerper. These assets which were *6 had failed to and that the beneficiaries resulting Loujen Kerper as a trust by challenge made in the es- the distribution Sep- subject to and of the became Kerper timely in a manner. tate of Wes The 1973 trust instrument. tember Wyoming 22, 1986, found that the September grant- the court further On court apply Income Act did not summary judgment by Principal and partial ed the filed resulting receipts and the trust or to the guardian imposed the ad litem and a con- by of the trust. upon trust the assets received disbursements structive Kerper daughters from the the four (4) Supplement Kerper Trust No. The par- Kerper granting The order the estate. Kerper and Hazel B. by 1 executed Wes for de- summary judgment tial left future attempted as an Kerper was ineffective the four termination the amount which of an irrevocable trust modification obligated to Kerper daughters would be power no to re- void ab initio because the trust. reimburse voke, modify September the amend or the settlors. reserved to 1973 trust was motions, including a pretrial After other partial summary judgment motion for (5) Principal and Income Wyoming The trustee, 2-3-614) court issued an additional the the (W.S. through did Act 2-3-601 holding partial summary judgment that: September 1973trust apply not to the October (1)The Sep- instrument or of Trust dated Declaration grant- the trust 7, 1965, trust instrument because terminated and became tember power the to determine daugh- to the trustee four ed distributable to the receipts expenses 1, 1967, that the the allocation September ters on limited principal and income Kerper daughters entitled to a between four were $75,200 ee, Kerper for surcharging Loujen in “good faith” only by the standard expenditure of trust funds reason of her duties. exercising the trustee’s pur- the contract for the in connection with legal (6) the treatises royalties The lands, surcharging Loujen of Hawaii chase trust the terms of held under were $86,300 expenditures and for Principal In- Wyoming whereby the to Russell Karaviotis property transferred apply not to the distribution come Act did liquidat- his assistance in connection with receipts or that all royalties surcharging ing the Rican assets and Costa royalties on these books income from the $47,901 paid additional an to the income ben- distributed were the professionals in connection with other eficiaries. of the trust. administration holdings, ap- pretrial Based on the required instead of the court determined that The district court’s order also peared trust, all being Kerper daughters one trustee of one there the four transfer apparently assumed was parties of Wes trans- portion of estate filed, there case this lawsuit was before ferred to them under the 1981 decree Each of these separate four trusts. were estate to distribution the W.G. and each contained different assets trust, trusts imposed liability on them different administered under $326,- was to be equal amount to one-fourth an 1). (See footnote terms. less the value of the recon- 987.38 veyed by Kerper daughters included stock Costa The trust assets trustee. companies. In 1985-1986the trustee Rican con- professional and incurred substantial a attempting fees in to conduct sultant That
liquidation of the Costa Rican assets. complain Dis- appellants that “[t]he was finalized late transaction surcharged improperly trict Court finding trustee trustee without period During the same time the trustee good faith.” had failed to act signed purchase offer on land Hawaii set- Appellants contend that the payment on the deal. and made a down liability limited the tlor of the trusts restraining orally entered a The trial court did not use and that the trial court restraining trustee order effective October determining the proper standard expending, from transfer- Generally trustee of liability. disposing trust trustee’s ring or otherwise fiduciary must act in a express until further or- an money, property or assets filed, respect property. capacity no to trust of the court. No bond was der (Second) 2 at 6 requesting made Trusts motion was ever Restatement written § parties (1959). duty loyalty restraining and the were The common law order might restraining duty order each given notice that a fundamental from which *7 A restrain- duty that time. written is derived. Re specific be issued at more trustee’s ing confirming (Second) all of this was entered 170 at 364 order statement Trusts § of 1986, 21, 23, On October (1959). duty on under a October A trustee is asking permis- petition administering the trustee filed a trust beneficiary in money out of trust assets sion to transfer man of and skill as a exercise such care deal, did land but the court complete in deal ordinary prudence would exercise payment the down was not allow that and property. Restatement ing with his own (1959). forfeited. (Second) 174 at Trusts § of However, express of an trust the settlor trial and the district The case went to fiduciary duties right modify the has the removing Loujen entered an order court ordinarily govern the administration trustee, Wyo- First appointing Kerper as a trust. trust- ming Cody as the successor Bank the trustee “By terms of the trust all ee, Loujen Kerper to deliver requiring in the ab- may permitted to do what be property to the successor trust- of the trust of care and skill for provision a in the trust Act sets out a standard sence of such a of his instrument would be violation the trustee. Scott, loyalty.” A. duty of The Law of requirements care Although the Trusts, (1967). 170.9 at § modified, may skill relaxed or “[a] 1, 1, Kerper Trust No. dated October fixing provision in the terms of the trust trustee, 1974, grants Loujen, as certain than that standard of care or skill lower powers. That trust reads relevant required of a which would otherwise be as follows: strictly trustee is construed.” Restate following shall have the “4. trustee 174, (Second) d ment Trusts comment § powers fiduciary exercised in a to be (1959). at 380 be liable loss capacity and shall not for “It is unthinkable that a trustee not have they good are exercised if (Emphasis faith.” obligations fiduciary. of a Uni- See added.) Act; 4-1-101, Fiduciary seq., form et § 1, Paragraph 8 of Trust No. dated 2-3-201], W.S. 1977 A trust- W.S. [now September makes a similar recita- by agreement escape ee cannot the fidu- tion in the 1974 trust. as that obligations ciary Wyo- of a trustee under liability In limitation on addition ming statutory provisions.” Gaudina v. above, appellants indicated direct our atten- Haberman, 159, (Wyo. 644 P.2d 167-168 1, provisions in the
tion to other October 1982). 1974 trust as follows: strictly There are sound reasons for con- (a) obligation Has no to increase the struing provisions in may ap- a trust that corpus; pear modify to lower and the standard of (b) ordinary in- Has to distribute both administering care and skill in a trust. income; capital gain come and lowering Such modifications or of the stan- (c) power reinvest accumulat- Has the departure dard is a from If common law. trust; ed income care, honesty the standard of skill and is to (d) express power to deal Has the Also, be diminished—how much? how herself; neglect much can be tolerated? (e) duty accounting, except Has no upon beneficiary’s request, written carefully have We examined the only upon even then an arrival basis. and, except provi trust instruments for the allowing sion the trustee her to deal with Appellants from assert that release self, cannot otherwise find a clear indica liability contained in the October directing tion the settlors that duties of trust and the 1973 trust the trustee and modified. It be lowered together with the recitations in the October clear, however, seems that the in settlors (a e) through 1974 trust set out above liability tended that the of the trustee be expressly fiduciary modified other duties. mismanagement. modified in the event of provision in the hold that the We Apparently the district court if two trusts “shall not be liable for loss opinion that the trustee should be liable they good a limi are exercised faith” is mismanagement of the trust whether liability. The in the tation on recitations good not she acted faith. In its conclu- (a out 1974 trust set above .October sions, among things, other the court deter- e) through are a delineation of some duties mined: powers The limitation the trustee. liability powers “29. though may and the delineation Even the Trustee *8 combination, however, good and duties do not have acted in or under a faith fiduciary modify ordinary duties of the mistake as to the extent of her duties except specifically provided powers, neglect trustee as and the violation or of properly the trust. The district court con her duties as Trustee does constitute a Act, the of trust for which the Trustee sidered Uniform Fiduciaries W.S. breach 2-3-211, through may 2-3-201 so far as that be removed. $68,- conclusion, i.e., only Loujen the of
“30. The use Trustee one Ker- funds, together per’s fully 000.00 of trust with the administration of the trust was $7,200.00, expenditure good of an additional all with the faith consistent standard pur the manage- connection with a contract for which must be used to her test lands, Therefore, chase of Hawaiian not show ment of the trust. did we reverse accordance with the stan provisions of and was not all the court’s district order judgment dard and care the under surcharging Loujen mismanagement of of ‘prudence, circumstances which men the trust. of intelligence discretion and exercise prudent man standard to find the trustee through faith tablish that she met that standard. The conclusions liable to the court in effect ruled that the trustee’s ty for the administration of stead it settlors’ intent to limit the trustee’s liabili- their their per, prove that her contract with Mr. Kara- viotis within the ring tract with Mr. Karaviotis or fulfilled her trust, ments to him for him or in transfer- ment intelligence such investment and It is come, which men gard “31. The Trustee had the “32. the management was immaterial in regard trust, as stock to him.” funds, considering capital. circumstances to evident 32 that it did not or as incorrectly Trustee, reasonableness, their own prudence in executing well the inwas reasonable, stated judgment burden exercise in the permanent prudence, from 4s as the to because may speculation, of good used the in paragraphs if affairs. result, the district court’s probable safety their own expenditures. be (Emphasis proof she did not meet then was and give Trustee, faith, benefit she did not es- surcharged discretion and the trust. disposition effect making pay- probable care reasonably prevailing burden but benefit and was manage- the con- affairs, has not respect added.) to the under in re good Ker In- in of a will language: lifetime under ber tract wills time of water wherever situate in property and estate of whatever kind and On tions thereof. uted held, managed, Huntsville, husband W.G. against my to this changed, all now agreement.” cute “2. “5. This is one of two “3. right, me May [*] 17,1973, to any existing mortgage obligation rest, husband’s made with I containing according rights and appurtenances, subject give, give, one, the corpus of either said my attest a title and consideration of altered or modified residue and remainder of [*] located at 2018 Avenue and is and that neither this will nor Texas with devise and death in the residence real devise and property. Trust be added to and become a administered reciprocal will shall my the [*] of us contract II of said trust and to be interest husband No. 1 dated trust following pertinent if he survives me [*] except by terms bequeath my bequeath reciprocal improvements, to the will I that he have at # during reciprocal executed attested Septem- trustee mutual distrib- to condi- all of [*] con- exe- my S, prudent reasonably parties appeals agree man All standard and to these incorrectly surcharges containing imposed against the that Wes executed a will expenses provisions day. trustee and disallowed admin- similar the same finding istration without first summary its In good act in trustee did not faith. judgment order the district court found the reciprocal be mutual Although departure somewhat of a 1974wills role, appellate language paragraph we 3 to be from our usual review found the express sustain of an contract between are convinced that the record will evidence *9 932 disposition for the For such a
Wes and contract to be valid it must Appellant Loujen comply of their estates. of otherwise with law contracts challenges findings, urging Wyoming. these that the in There must be an offer and reciprocal bargained 1974 wills are not and that the acceptance along with findings incomplete to were establish a exchanged valuable consideration. See W. binding contract. Since the material facts Jaeger, 119B at Williston On Contracts § dispute in in involved this issue are not we (3d 1957). 493-494 ed. Valuable considera- order, judgment summary review this may spous- tion in this context of consist a incorporated judgment, into the final exchange promises, al of mutual alleged terms errors of law. Fitch v. promises impose legal liability upon each Savings and Loan Federal Asso- promisor. Contracts, 370 Williston On § Buffalo ciation, 1309, (Wyo.1988). 751 P.2d 1311 908-913; Foster, at and Schmidt v. 380 124, (Wyo.1963). P.2d 126
This court summarized defini joint, reciprocal tions of and mutual wills quoted also Shook Flohr v. Bell, 1320, (Wyo. Shook v. 599 P.2d 1321 Walker, 833, (Wyo.1974), 520 P.2d 837 1979), when we said: where we said: “Although the courts have not been uni general “The rule seems to be that a form in their use and definitions of the joint and pursuant mutual will executed terms, ‘joint’ wills, ‘reciprocal’ we define to an based on valuable con- wills, and ‘mutual’ wills as A follows: sideration is contractual as well as testa- ‘joint’ single is a testamentary will in mentary and becomes an irrevocable obli- constituting containing strument gation part on the surviving testa- persons, jointly wills of two or more upon tor party death of the other ‘Reciprocal’ executed them. wills are testate under a will which is in accord those in which each of two or more testa agreement. with the terms of the In re testamentary disposition tors makes a Wade, 380, Estate 202 Kan. 449 P.2d favor of the other. ‘Mutual’ wills are 488, 493; Godwin v. Wachovia Bank & separate instruments, two or more each 520, Company, Trust 259 N.C. 131 by separate testators and mani 456, 462-463; Fouche, S.E.2d Alocco v. festing dispose a common intention to 244, Cal.App.2d 190 11 Cal.Rptr. property particular their in a manner. 822; Wills, 712; 57 Am.Jur. 97 C.J.S. § We do include as of the defini Wills, 1367e(2),p. 307.” § will, do, tion of a mutual as some courts This does not mean containing that will the elements of execution each testa such a contract is irrevocable in and of pursuant agreement, tor to an each in itself after it is A executed. will is ambula- consideration of the other. 1 Bowe-Par- tory may pursuant be revoked to statu- Wills, Page 11.3; ker: On 11.1 and 97 §§ tory requirements at time. See W.S. 1364e(1); Am.Jur.2d, C.J.S. Wills § mean, however, 2-6-117. It does Wills, 754.” § surviving spouse where a revokes the mu- quoted Bell, Also Matter Estate tual disposi- contract will and makes a new (Wyo.1986). 726 P.2d Based on tion property in his estate he has simple these definitions we hold that the violated the contract with his deceased Kerper’s 1974 reciprocal wills were in de- spouse. regard, In this long ago this court vising title to the Texas residence to one quoted approval the rule set forth another, establishing mutual a com- Superior Brown v. Court In and For Los plan disposition mon of the residue of Angeles County, 34 Cal.2d respective their estates. (1949): P.2d Bell,
In Shook v. 599 P.2d at parties agreed “Where two to make mu- wills, wills, we intimated that mutual promising dispose which recit tual each estates, ed dispose spousal or, a contract to his to the other if the other might dead, be evidence of such a contract suffi persons, to certain third and one cient itself to parties performs by leaving establish- its existence. of- the
933
dence, reversing
of
other,
the conclusions
the trial
the intended devi-
to the
disagree.
to enforce
court. We
legatees are entitled
and
sees
under the
rights as beneficiaries
their
paragraph
of
The contract consists
3 of
party
contracting
who
agreement. The
will,
Kerpers’ 1974 mutual
set out
making
estopped from
survives becomes
above,
“Kerper
and a document titled
Trust
disposition
different
of
any other or
17, 1973,
September
1”
incor-
No.
obligations
his
under
property, and
porated by reference in the 1974wills. The
absolutely irrev-
become
in
pertinent provisions
that trust document
him,
against
at
and enforceable
ocable
read
follows:
as.
pro-
least where he avails himself of
“KERPER
NO. 1
TRUST
decedent’s will in
visions
favor
of
“THIS KERPER TRUST NO. 1 executed
there-
accepts substantial
and
benefits
17,1973
September
by and between W.G.
added.)
in
(Emphasis
(Adopted
under.”
grantors
and Hazel B.
Estate,
389,.
Wyo.
Stringer’s
80
In re
Loujen Kerper as
and
trasteé WITNES-
406,
508, 514, rehearing denied
343 P.2d
SETH
modified,
389, 345
opinion
Wyo.
80
time
“1. Grantors from time to
will as-
(1959);
quoted in
v.
P.2d 786
also
Shook
sign, convey and deliver to the trustee
Bell,
1323).
at
599 P.2d
cash,
properties
may
include
secu-
went on to state:
We
rities,
properties
other
real estate and
adopting
Stringer, supra,
in
“We said
held in trust
the trustee for the
Brown,
holding Schomp
215 Or.
v.
purpose
upon
pro-
the terms herein
recipro-
or
335 P.2d
that mutual
vided.
revoked,
wills,
though
will stand
cal
even
hold, manage,
shall
in-
“2. The trustee
agree-
as evidence of the contract. The
properties and
and reinvest the trust
vest
provides
underpinning
ment which
the income thereof and dis-
shall collect
the contractual wills is irrevocable
principal as
pose of the net income and
advantage
takes
the survivor
of
if
follows:
by the oth-
provisions
the will made
paid
“The net income shall be
not less
Estate,
Stringer’s
er. We noted
In re
equal
semiannually
than
often
Ihmsen,
quoting from
v.
33
Canada
daughters, Minabelle
grantors’
shares to
Wyo.
P.
43 A.L.R.
240
Milodragovich, Loujen
[Meike]
1010, 1014 and authorities therein con-
and Jill
tained,
agreements
to make mutual
respectively.
Lennon for their lifetimes
reciprocal wills
husband
between
except
Upon
any
of them
the death
Wyo.
80
at
and wife should be favored.
payment
such
the last to die the
to which
(Citations
407,
wishes tract tion, ceased fer trust is surviving spouse of their children and spouse’s estate is to be transferred to that wills, spouse’s regarding accomplished. In the surviving spouse they deceased which direct both estate benefits execute for spouse’s disposition of the de fulfilled, grandchildren, that a when the trans is assets to the latter situa having the benefit and there deceased it my income from I. either as investments wife Mildred I. entireties survives “2. is Kerper those [*] children my I give, intention me, joint [*] or tenants devise surviving. and if not my separate joint ownership tenants, assets $ and bequeath [*] acquired in equal all bequeath By tenants common if she estate received properties this jjc to Mildred shares to with with bequest by the to [*] and her my wife, my to the death of Ha- subsequent material, always and A benefit Kerper. zel B. any authority appellants have not cited I give, bequeath “3. devise and dll impliedly this this court even refutes rest, my and residue remainder advantage" lan- application the “takes kind estate whatever property and found guage v. Bell. We have Shook equal and situate shares wherever however, in- authority, applying above Ker- my daughters, Minabelle [Meike] terpretation of in this the word “benefit” per, Kerper, Kerper and See, e.g., and context. Citizens Southern Lennon, an undivided one Jill trot, 783, Leap 225 v. Ga. National Bank each; any pre- and (1969); 555, Schomp v. 171 S.E.2d 558 if fourth thereof share would have me the she deceases Brown, 714, reh. 215 Or. 335 P.2d equal to her go taken shares shall 714, opinion 215 clarified Or. denied equal surviving and none in children Lieuallen, (1959); v. if Ankeny P.2d 358 337 my daughters other surviv- shares to 206, 1113, (1941), Or. P.2d 1118 169 113 ing. rehearing 169 Or. dismissed P.2d (1942). [*] [*] [*] [*] [*] # “5. This will is made with July reference to 1980 shall be carry modified to carry out more specifically provisions in ac- will, out the copy his last original agreement cordance with the which is annexed as Exhibit A. provisions and contract recip- “2. In original accordance rocal by contract will executed me on understanding between W.G. May Hazel B. and in further accord- [*] [*] # [*] [*] [*] ance with antenuptial agreement dat- September 16, ed Mildred between I “7. revoke all former will and testa- I. Franks and Kerper, agrees W.G. W.G. mentary papers by made me. that assets prior owned W.G. to his “I, Wesley G. also known as marriage to Mildred I. Franks are his testator, being W.G. duly first separate property and that none of these sign my sworn name to this instrument assets shall be converted into form day this hereby declare to the under- joint ownership with Mildred I. Ker- signed authority sign that I and execute per, nor to her individually. my will; this instrument as last that I “3. children and each of them sign willingly and execute my it as free hereby relinquish waive and provi- all voluntary act purposes for the there- sions in said contract May will of expressed; am an adult 1974 executed may W.G. that con- person of sound mind and under no con- trary or inconsistent with the last will straint or undue influence. *13 by 15, executed July him on 1980 and July “DATED 1980.” agree specifically to by be bound Contemporaneous will, with this 1980 Wes terms of said last will. Kerper daughters and his four entered into agreement “This binds and inures to the agreement a written which read: parties, benefit of the heirs, their devises “THIS AGREEMENT executed July personal and representatives. by Wesley between Kerper G. “EXECUTED the date first written also known as Kerper W.G. herein called above.” W.G. and Minabelle Kerper, Lou- [Meike] Kerper Wes jen acknowledge did Kerper existence and Jill Ker- per his contract Lennon will with herein called Hazel in children these documents. The 1980 prior WITNESSETH will revokes all wills, along with the with May 25, on “WHEREAS 1974 W.G. and daughters, the four requires por- that the Hazel B. then husband and wife tion of Kerper’s Wes estate in existence reciprocal leaving contract wills when he entered the 1974 contract was to substantially property all owned them equal be distributed in to shares to the four Trust No. 1 dated October daughters outright 1974; upon his death and grandchildren only would take if their “WHEREAS orig- accordance with the mother was deceased. inal understanding between W.G. and Hazel B. Kerper a July later dated will We have held that the 1974 15, 1980 has been executed and attested wills constituted a contract. The final is by W.G. sue we must now address is whether Wes “NOW THEREFORE in consideration of Kerper’s 1980 will constituted a breach of love and affection and other valuable that contract. We hold that it did not. consideration hereby agreed it is as fol- remedy The employed by court, the district lows: i.e., imposition of a constructive trust and “1. The later requiring will executed W.G. on reimbursement to the trust of the July disposi- shall control in the assets distributed to the four tion properties of his daughters will, and estate and under the 1980 does vindi provisions reciprocal of his contract language will cate the literal of the 1974 con May 25, dated may contrary that be tract price will but it does so at the or inconsistent with the last imposing will executed daughters a burden on the that is arguments for the substantive defense as well as the spirit, the antithesis pro- that dissents have letter, Kerpers’ presented. efforts to It seems the elder Although witty? de- daughters. we cute? sar- for their an excuse be vide become documents the extrinsic a forum appeal clined to consider instincts? castic? base unambig- construing reporter evidence merely pollute that views wills, are language of the 1974 we uous of dis- system rather than the statement determining it in to consider law, constrained hopefully agreement, based Kerper’s 1980 will was whether Wes they are intended be. that contract. To do otherwise breach dissent, if syllogism employed by the The condoning remedy result in our would the hold- syllogism, indeed it is a mistakes daughters ravages the lives of ing opinion. The tirade of the com- real, primary, only if not the who were patently wrong. is panion dissent Kerper’s estate focus of and Hazel holding of the court is that: Kerper’s 1980 will plan. hold that Wes We made a contract with complied the contract he substantially with wife. Kerper. Cor- into See entered substantially performed the con- 2. He (1963). bin, Contracts, To the Chapter 36 tract. expectan- grandchildren had an extent contract, expectancy cy under faith, good received no 3. He acted flowing in the form of benefits realized benefit, and took none of the indirectly to directly their mothers and agreed that he and Hazel for himself dependents of their mothers them as go should to their children. es- heirs of their mothers’ as the natural therefore, not, did breach the con- 4. He grandchildren A conclusion that the tates. tract. per- off had Wes would be better apply and Thomas would Justices Brown literally specu- more formed his contract mechanically regard without law lative, counterproductive, produces an ab- practicality. A any accommodation for and cannot sustained under surd result and, justice perhaps of the principle of *14 unique of this case. the circumstances well, as is that where the reason “law” recently issu- Many dissenting opinions (cessante the the law ends so should law disturbing ing court are because from this lex). ipsa et The legis, ratione cessat nature, the their sarcastic ridicule supported that this decision is not assertion nursery majority silly and references to can it by logic is at best absurd. How be rhymes. The dissents in this case continue Kerper’s ac- illogical to conclude that Wes to pattern. There is a total refusal the tions, violence to his children’s which do no acknowledge a doctrine of sub- that even satisfy primary intent lives and which exists, though it is performance stantial provide for the future and Hazel to of Wes Contracts,
found in 17 Am.Jur.2d
§
chil-
well-being of their own
security and
818; in
commencing
page
Corpus
at
Juris
dren,
may
argued
illogical? It
be
that
are
Secundum;
cited
and in thousands of
perform-
did
not substantial
what Wes
portray
majority
cases. The dissents
ance,
argued
such
it can never be
that
but
pro-
opinion
having sold out the law to
inap-
that it is
principle does not exist or
a
not understand the
duce a result. We do
case,
might
one
plicable in this
however
amongst
intemperate language
use of such
in the
analyzing the case
come out after
It is the sort of
of this court.
brethren
light
principle.
that
us,
says
you
“if
that
small-mindedness
public,
court will better serve
This
me,
only
agree
you are not
don’t
with
law,
credibility if an effort
its
and
own
Why
it that
wrong
stupid as well.”
is
but
dissenting
opinions
is made to return the
It
disagreement must be so acerbic?
occurs,
are
that
we
proper role. Until
their
enough
disagree and state
would
are
that the dissents
compelled to observe
suspect
why. I
that
plainly the reasons
cup-
went to the
Mother Hubbard who
intemper-
and
like
employ such unfair
need to
They likewise are
mainly
board and found bare.
arises
from lack
ate criticism
hostility, in
logic
support
posi-
or not the
bare of
or law to
their
tions is whether
circumstances,
tion; thus,
ridicule,
existing
necessity
sar-
combination
the administra
supposedly
materially interferes with
casm and
clever witticisms.
likely
that
trust or is
to cause
tion of the
hold, therefore,
provisions
that the
We
Annotation,
Hos
result. See cases cited
directing
the district court’s order
reim-
Beneficiary as
tility Between Trustee and
assets,
bursement to the trust of the
or the
Removal, 63 A.L.R.2d
Ground for
thereof,
received
value
(1959)
A.L.R.2d Later
525-526
and 62-66
daughters under the 1980
iswill
reversed.
270-271;
Bogert, The
at
G.
Case Service
86-94
Law Trusts and Trustees
527 at
§
Ill
district,
1978).
(Rev.2d
power
ed.
The
of a
findings
In its
and
a
for these or other
court
remove trustee
conclusions the
court determined
district
equity,
the court
reasons
rooted
and
has sound discretion to make a determina
hostility
animosity
and
between
“[t]he
2-3-210;
tion as to removal.
63 A.L.
W.S.
Loujen Kerper as Trustee and Meike
supra
R.2d
at 531 and 62-66 A.L.R.2d La
trust,
Kerper, beneficiary
is such
ter Case
at 271-272. We will not
Service
proper
that it does interfere with
admin-
disturb an exercise of district court discre
istration of the trust and does constitute
tion unless its actions are shown to have
ground
Loujen Kerper
for removal of
arbitrarily
capriciously
been made
as Trustee.
disregard
judgment
of the use of sound
animosity
hostility
“18. The
be-
regarding
right
what is
under the circum
Loujen Kerper,
tween
State,
stances.
Martin v.
P.2d
hand,
Jill
on one
and Meike Ker-
(Wyo.1986).
hand,
per on the other
has reached a
cooperation
proper
level that future
In these cases the district court
improbable
administration of the trust is
hostility
determined that sufficient
existed
Loujen Kerper
unless
is removed as
between Meike
and the trustee to
independent
Trustee and an
Trustee is
warrant removal of
as trustee. We
appointed as successor Trustee.
disagree
appellants
with the
claim
who
tween the four
turn over
removing Loujen as trustee.
moved
familial
clude
sisters in
the First
The trial court went on to order
cessor trustee.
Appellants
Trustee should be decided on
“54. The removal or retention of a
have
the trial court should not have re-
that there
[*]
best
Loujen
hostility. Loujen
a
Wyoming
all trust
arguing
sufficient factual basis to con-
interest of the
[*]
Janeen and Jill
as trustee because of
Kerper daughters
[*]
that the trial court did
Bank of
enough animosity
n
also
beneficiaries.”
Kerper argue
Cody
[*]
what
records to
joins
to
as suc-
alleged
justify
$
is in
her
be-
Trust National
pital trustee. Cf. Dennis v. Rhode Island Hos
trustee and the
noncompliance
the trustee’s removal of the
of
animosity between Meike
these cases were
alty
al of the district court’s
the record
Meike’s
trustee’s activities
court
also
in, the contents of letters
Meike’s
litigation
(1st Cir.1984) (holding
from the
figure
specifically
testimony
use and
supporting
into the
itself can demonstrate
jurisdiction of
with
beneficiaries,
*15
upkeep
found as facts that the
was the
pending,
hostility equation.
concerning:
discovery
that decision. Sever
Bank,
findings
only
that the course
the court while
Husky
744 F.2d
all evidenced
between
the trustee’s
family
orders and
evidence in
her sister
hostility
and the
of fact
oil
cab
roy
trustee).
Generally, social or
familial
sufficient to warrant
of
removal
a
facts,
court,
hostility
by
the trustee and one or These
found
between
as
district
clearly support
legal
more beneficiaries of a trust is insufficient
conclusion that the
hostility
Loujen
in and of itself to
of a
Meike and
warrant removal
between
had the
question
potential
adversely
proper
in
trustee.
real
these situa-
affect the
ad-
sup-
ministration of the trust and therefore
to this discussion is
(Second)
Restatement
ports
removing
(1959),
Loujen
the court’s order
Trusts
108 at 238
which states:
§
of
not, however,
trustee on that basis. We do
“If a trust
is created and there is no
findings
in
see sufficient
of fact
this record
trustee,
trustee or if the
or one of sever-
support
any hostility
the conclusion that
trustees,
al
any
ceases for
reason to be
animosity
that exists between Meike
trustee, a
appointed
new trustee can be
and her sisters Jill and Janeen warrants
“(a)
court;
by
proper
or
appointment
independent
of an
trustee at
“(b)
person,
by
any,
by
who
if
this time.
terms
the trust is
ap-
authorized to
of
holding mind,
briefly
point
added.)
With that
we
(Emphasis
a trustee.”
appellants’ argument
address
that the ex-
Giving
quoted
para
the words
1,1974
press language of the October
graph
plain meaning,
we hold that the
gave
Kerper daughters
the four
the exclu-
district court’s
of
removal
as trust
right
among
sive
to determine
themselves
ee falls within the “or fails to serve” lan
person
entity
replace
which
or
would
Lou- guage,
thereby requiring
replace
that a
jen as
if
trustee
that situation ever oc- ment
trustee
be chosen
argument
curred. This
based
daughters. We hold that the “for other
following language from the trust doc-
language
vague
reasons”
apply
is too
ument executed on October
1974:
this situation when the “fails to serve”
“8.
If the trustee or
successor
language
applied
can
through
normal
dies, resigns
trustee
or
to serve as
usage.
portion
fails
That
of the district court’s
ap-
trustee a successor trustee shall be
appointing
order
Wyoming
First
Bank
pointed by
daughter
or daughters
Cody
successor trustee is reversed.
grantors
surviving.
then
If a vacan-
THOMAS, J.,
dissenting opinion.
filed a
cy
position
occurs
trustee
BROWN, J., Ret.,
opinion
filed an
con
reason
the death
grant-
the last
curring
part
dissenting
part
daughters
ors’
to die or
other rea-
THOMAS, J., joined.
sons,
Bank,
then First
Cody, Wyo-
State
ming
Wyoming
Cody]
First
Bank of
[now
THOMAS, Justice, dissenting.
shall be the successor
carry
trustee to
I, too, must
from
dissent
the resolution
(Em-
provisions
out the
of the trust.”
according
of the issues
II of the
added.)
phasis
majority opinion. Expressed
syllo-
as a
Appellants contend that the district court’s
gism,
aspect
majority opinion
removing
trustee,
reason for
Loujen as
ani-
must be stated as:
mosity between the trustee and one of the
(cid:127)
Wes
made a contract
his
beneficiaries,
“dies, resigns
falls under the
wife, Hazel,
dispose
property
of his
language quot-
fails to serve as trustee”
particular way
in a
in his will.
Appellees
ed above.
say that the court’s
(cid:127)
Kerper disposed of
his
in a
removing
reason
as trustee falls
way
different
in his will.
language
within the “for other reasons”
(cid:127) Therefore,
Kerper performed
paragraph.
the same
contract with his wife.
disagreement
This
over the mean
succinctly
Justice Brown has
noted that
ing of
in paragraph
the words
8 of the 1974
*16
supported by
this resolution is not
the law.
goal
trust must be resolved with the
effec
supported by logic
It is not
either. There-
tuating the intention of the settlors. When
fore,
justification in either
without
law or
possible that
intent is to be ascertained
logic,
supported.
logic.
it is not
That’s
from the words in
if
the trust instrument
they
given meaning
can be
that will not
I know that the statue of Justice normal-
general purpose
establishing
figure.
ly depicted
defeat the
is
with a
on the
blindfold
symbolic
the trust. First
Bank
The
is
of the absence of
National
& Trust
blindfold
Brimmer,
Company Wyoming
justify overlooking
v.
504
It does not
the
bias.
of
facts,
(Wyo.1973).
permit
P.2d
Also relevant
law or the
nor does it serve to
they
ignore
scale and conclude markable feat
did violence to the law
Justice to
the
contracts,
of
trusts and future interests.
lighter weights are heavier or vice
that the
versa.
opinion, majority carefully
In
the
de-
its
adjudicative
lineates the
of this case
facts
complain
judicial figures
I
of
have heard
law,
applicable
para-
then in the last
Now, I
decisions.
more ful-
result-oriented
graph
page
opinion, majori-
of
19 of the
the
complaints. Perhaps I
ly appreciate those
ignoring
ty surprises
the reader
what it
hasty
saying
majority
that the
deci-
previously
the
has
said about
law.
support in
supported;
sion is not
it finds its
magic paragraph
page
The
on
936 of the
majority chose.
the result that the
majority opinion states:
juncture,
to me that
At one
it occurred
have
the
We
held that
wills con-
supported
perhaps the result could be
be-
The
stituted
contract.
issue we
final
present
of
failure to
the claim of
cause
the
must now address is whether
Ker-
Wes
the
beneficiaries in
disenfranchised trust
per’s 1980 will constituted a breach of
probate proceeding
Kerper’s
for Wes
that contract.
hold that it did not.
We
Williams,
Wyo.
Hawkey
estate.
v.
remedy employed by
The
the district
(1953),dispels
Q. Kerper, Did Mr. who was an attor- right outright enforceable contract to an ney, any problem ever mention corpus share of the breaching they if with his first survived wife, Kerper daughters. Kerper, by entering into this just that to Wes when we first talked about it inconsistent with and he ahead with it. tion new A. # reciprocal confident it, agreement? [Mr. Housel] said, well, [*] that’s no one would ever provisions, [*] he why an Well, recognized [*] earlier he wanted to I mentioned but [*] will and he it was ques- [*] go tinent into the trust with Hazel. The 1980 In drew 1980 revoked his 1974 contract will death to duty rest, spite I part: residue and remainder of give, of that pour grandchildren devise and and, the remainder of his estate legal obligation, owed a clear contractual course, will bequeath provided he knew that. being my prop- all the hewill at his per- Q. you erty Did ever hear Wes and estate of whatever kind and anyone by entering tell into equal wherever situate in my shares to Plaintiffs exhibit 77 and Mr. daughters, Minabelle [Meike] making a new will that he would be Loujen Kerper the 1973 [Trustee breaching reciprocal a contract to make Trust], Jill Kerper? wills with Hazel Lennon, an undivided one there- fourth each; if predeceases I me A. don’t recall that or Jill go present were the share she would have taken shall when talked to him about him, equal surviving that. I did shares to her children discuss that with necessarily equal my terms of and if none in shares to breach. I told him other added.) daughters surviving. (Emphasis and he was inconsistent was not sure *18 942 obligation that part of the form at least a disposed of assets face, 1980 its the will On contract, in the 1974 will promised corpus she the supposed to become
that were only par Kerper to thereby allowing Wes change the purports to It also of the trust. similar, eq part in a perform his tially living grandchil- legal character recita majority’s The own fashion. uitable in the will con- established dren’s interests the facts states that tion of contingent remainders. from tract vested part of the contract performed her will, revoking his By executing this new full Kerper accepted the benefits and that Wes mil, es- dispersing contract Ker complete performance. Wes of that the contrary to the will and tate to invoke the legal justification no per had trust, unambiguous terms the performance, but this theory of substantial will breached his Kerper plainly him a little fashioned one for court to devise and be- with his contract wife writing. legal creative the trust his estate to queath the bulk of thereby creating majority remain- corpus, suspect paragraph vested in the as The grandchil- The grandchildren. “unique cir- opinion finally ders the refers right equitable I submit that dren had a solid contract cumstances of this case.” unique thing in a trust this case is the ownership of vested remainders the most about a clear by Kerper’s way majority estate and has danced around corpus funded Wes the funding of the of contract. Kerper frustrated the breach one only the conclusion trust. That determination that Wes The trial court’s plain to draw from the lan- should be able sup- contract is his 1974 breached controlling in this guage documents by and the facts as ported both law case. opinion. The fact majority in the recited disturbing perhaps most about consequences What is from such that the flow majority’s holding is the total lack of should a neutral factor breach are harsh be authority support their desired result. not appellate court. It should be with an support majority for re- only given necessary The citation as for me to remind is not a versing judgments against Supreme is not. The Court what it de- vague equity. to the en- It is not a tribunal daughters is a reference court of Corbin, signed to its wisdom for the Chapter 36 of 3A A. Corbin on substitute tire others; (1960), and it not de- Contracts, foolishness 700 at 308-09 § greed signed people from their own to save the contract doctrine of substan- discusses folly. This citation is mislead- performance. tial ing. chapter, I read that find that When majority adopted that the has It seems per- presents the doctrine substantial is: “We are the rule this case which new following text: formance with Therefore, any- Supreme we can do Court. party one has to render When thing to do.” we want failed performance as and when majority should heed the words The him, following questions promised Supreme Jus- the late States Court United may arise: tice Cardozo: party privileged to re- 1. Is the other free, he is is still judge, even when promised reciprocally to render fuse at wholly free. He is not to innovate performance? knight-errant, He is not a pleasure. wholly party the other dis- Is pursuit of his own roaming at will duty? charged from his contractual goodness. He is to beauty or of ideal of party maintain suit 3. Can the other inspiration from consecrated draw his damages, regarding the breach yield spasmod- He is not to principles. “total”? sentiment, unregulated vague ic a discre- He is to exercise added). benevolence. (emphasis way There is no this Id. tradition, methodized informed this tion applied doctrine can facts system, and sub- analogy, disciplined by majority has to take rely To on it case. necessity of primordial “the per ordinated to Kerper did not position that Hazel enough order in the life.” Wide social
(cid:127)all conscience is field of discretion
that remains. Cardozo, Benjamin N. The Nature (1921).
Judicial Process agree in its majority with the resolution III,
of the issues in I and but Parts dissent II respect to Part and would affirm'
the trial issue. court on that KING, (Defendant), Appellant
Ike
v. Wyoming,
The STATE of (Plaintiff).
Appellee
No. 88-297.
Supreme Wyoming. Court
Sept. 20, 1989.