Bain v. Northwestern National Bank

77 N.W.2d 833, 247 Minn. 559, 1956 Minn. LEXIS 605
CourtSupreme Court of Minnesota
DecidedJune 29, 1956
DocketNos. 36,862, 36,863
StatusPublished
Cited by2 cases

This text of 77 N.W.2d 833 (Bain v. Northwestern National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bain v. Northwestern National Bank, 77 N.W.2d 833, 247 Minn. 559, 1956 Minn. LEXIS 605 (Mich. 1956).

Opinion

Murphy, Justice.

This is a consolidation of two appeals, the first being an appeal from a district court order authorizing the trustee under the last will and testament of Caroline M. Menzel, deceased, to execute and deliver an agreement amending a long-term ground lease, and the second being an appeal from a judgment of the district court affirming an order of the Hennepin County probate court which authorized the guardian of Emma Menzel Levering, an incompetent, to join in the execution and delivery of that same lease. Both appeals are taken by the duly appointed guardian ad litem for ten minors, children of remaindermen, to represent and protect their interests as well as to represent and protect the interests of any children hereafter born who now or in the future may have an interest, either as remaindermen or otherwise, in the land and lease involved in the proceeding. The petitioner, respondent here, in both the district and probate courts, was the Northwestern National Bank of Minneapolis as trustee under the last will and testament of Caroline M. Menzel, deceased, and as guardian of the estate of Emma Menzel Levering, incompetent.

In October 1906, Caroline M. Menzel, as one of the executors of the last will of Gregor Menzel, and her coexecutor, entered into a 99-year lease of the property on the northeast corner of Ninth Street and Nicollet Avenue in Minneapolis, the present site of the Medical Arts Building, which lease is to expire on April 30, 2005. Among other things the lease provides for an annual cash rental of $8,000 net, the tenant to pay the taxes, insurance, and other expenses; [562]*562there is no provision for readjustment of this rental figure. In addition the agreement provides that the lease will terminate absolutely at the expiration of the term although the lessees may remove the building and improvements in the six months preceding the termination date. The present lessee, as assignee of the lease, is The Nicollet Corporation.

Under the trust set up in the last will and testament of the former lessor, Caroline M. Menzel, deceased, the Northwestern National Bank as trustee holds an undivided á/10 of the land to which the lease pertains and the lessor’s interest in the lease. In addition the bank as guardian of Emma Menzel Levering, an incompetent, age 69, holds an undivided 3/10 of the land and the lessor’s interest in the lease. The remaining 3/10 interest is owned by Margaret M. Bronson of Tacoma, Washington, age 6á. Both she and Emma Menzel Levering were nieces of the testator and are beneficiaries under the trust which is to terminate upon the death of the survivor. Upon termination of the trust, the corpus and all accumulated or unexpended income was to be distributed to the children of Margaret M. Bronson, namely, Richard Bronson, age 36, Jane Bronson Schulze, age 31, and Gregor Bronson. Gregor Bronson, however, who is named as a respondent in the action, has been declared dead by the War Department under the Missing Persons Act. The trust then provides that, if these children do not live to take upon the termination of the trust, their respective shares go to their surviving lineal descendants, if any, equally per stirpes and by right of representation. In the absence of such lineal descendants, that particular share is to be divided between and added to the shares of the surviving individuals or their representatives. Gregor Bronson who was reported missing and presumed dead left no lineal descendants. At the present time Richard Bronson has six children ranging in age from ten months to nine years of age. Jane Bronson Schulze presently has four children from two to eight years of age. These ten children and any other persons who may now or in the future have an interest are the contingent remaindermen for whom the appellant has been named guardian ad litem.

[563]*563The Northwestern National Bank, both as guardian of the incompetent Emma Menzel Levering and as trustee, seeks authority to enter into an agreement made between it in its representative capacities along with Margaret M. Bronson, as lessors, and The Nicollet Corporation, as lessee. This new agreement amends the 1906 lease, which is to expire in 2005, in many respects, the most important of which concern the rentals to be charged, extension of the termination date of the lease, and various options to extend the lease as well as to purchase the land. The rental under the new lease arrangement would be immediately increased from $8,000 to $16,000 per year. The $16,000 figure is subject to adjustment in accordance with the fluctuations in the Wholesale Price Index for all commodities as published by the Bureau of Labor Statistics. In no event, however, may the rent drop below $12,000 per year or exceed $31,000 per year.

In addition, the lease agreement extends the term of the lease 50 years from its present expiration date of April 30, 2005, to April 30, 2055. In 2055, the lessee will have the right to buy the property in accordance with an appraisal as of April 30, 2052, or will have the option to have the lease extended to April 30, 2105, at a rent of five percent of the appraised value as of April 30, 2052. If the lease is so extended, either party in 2079 may have a reappraisal and the rent for the remaining 25 years will be five percent of such reappraised value of the land and the lessee may then purchase in 2105 at its appraised value as of April 30, 2102. It is further agreed that the owners have the right to sell the land at any time during the term, or extended term of the lease, but must first give the then lessee an opportunity to buy at the price offered by the third party.

The respondents emphasize that all adult persons in being having any interest, either under the trust or as heirs of Emma Menzel Levering, have consented in writing to the amended lease agreement. In both the proceeding in the district court and in the probate court, however, the guardian ad litem on behalf of the contingent remaindermen objected to the proposed amended agreement. The trial court authorized and instructed the trustee and guardian to join in the execution and delivery of the amended agreement and provided [564]*564that the order pertaining to tbe trustee would be binding upon all parties and upon all remaindermen and remainder-interests either in being or not in being; and that the judgment in the probate proceeding would be binding upon the ward, her estate and upon her heirs, next of kin and successors in interest. The practical effect of one clause of the new lease agreement is that the amended lease will become effective only upon this court’s affirmance of the lower court holdings.

The last will and testament of Caroline M. Menzel provided that the trustees of the trust therein set up would have the same rights and powers of dominion over the property as the testator if alive would have.1 There is no specific power granted to the trustees to lease for a period which would terminate beyond the possible duration of the trust. The trustee seeks the court’s permission to enter into the lease under M. S. A. 501.22, 501.28 to 501.32, and 501.33 to 501.38, inclusive. Section 501.22 provides in part as follows:

“Subd. 4. The district court may * * * authorize such a trustee to lease such real property for a term exceeding five years, if it [565]*565appears to the satisfaction of the court that it is for the test interest of the trust estate, * * *.

* * * * *

“Subd. 8. A

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Related

Sword v. Marquette National Bank
91 N.W.2d 75 (Supreme Court of Minnesota, 1958)
In Re Trusteeship Under Last Will of Menzel
247 Minn. 559 (Supreme Court of Minnesota, 1956)

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Bluebook (online)
77 N.W.2d 833, 247 Minn. 559, 1956 Minn. LEXIS 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bain-v-northwestern-national-bank-minn-1956.