In Re Boelson Trust

830 N.E.2d 37, 2005 WL 1530558
CourtIndiana Court of Appeals
DecidedJune 30, 2005
Docket82A04-0411-CV-592
StatusPublished
Cited by3 cases

This text of 830 N.E.2d 37 (In Re Boelson Trust) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Boelson Trust, 830 N.E.2d 37, 2005 WL 1530558 (Ind. Ct. App. 2005).

Opinion

830 N.E.2d 37 (2005)

In the Matter of the Marian BOELSON TRUST U/A Dated 4/25/1996, as Amended.
University of Southern Indiana Foundation, Appellant,
v.
Richard A. Baker and Integra Bank N.A. Trust and Investment Management Group, Appellees.

No. 82A04-0411-CV-592.

Court of Appeals of Indiana.

June 30, 2005.

*40 Alan N. Shovers, Elizabeth A. Browning, Kahn, Dees, Donovan & Kahn, LLP, Evansville, for Appellant.

John Burley Scales, Frank R. Hahn, Law Office of John Burley Scales, Boonville, for Appellees.

OPINION

MATHIAS, Judge.

The revocable inter vivos trust of Marian Boelson ("Boelson") was interpreted in the probate division of Vanderburgh Superior Court. The University of Southern Indiana Foundation ("USIF") appeals, raising the following restated issues for review:

I. Whether the probate court properly excluded parol evidence; and,
II. Whether Boelson's trust's use of the term "personal property" should be construed as meaning "personal effects."

Concluding the probate court did not err when it excluded parol evidence and "personal property" means "personal property," we affirm.

Facts and Procedural History

On April 25, 1996, Boelson executed a revocable inter vivos trust. The portions of this trust relevant to the case at bar state:

6. Upon the death of Marion Boelson (and upon the direction of her Personal Representative if any) the TRUSTEE shall pay any and all expenses connected with or arising on account of her death including any funeral bills, costs of last illness, inheritance, estate or succession taxes, court costs, attorney's or executor's fees, legally owing debts of Marian Boelson and any other costs of a like or similar nature, all of said payments to be made out of income first and then principal of this trust.
7. The TRUSTOR is not unmindful that she has a brother and sister living at the time she executes this Trust and that her brother has adopted children. Furthermore she is aware that there are relatives of her deceased husband, Emory Boelson. However, she elects not to provide for any of said heirs or heirs of her deceased husband.
8. After payment of the sums described in paragraph 6, the TRUSTEE next shall distribute to Faye Rucks presently of 850 Cherokee Road, Henderson, Kentucky 42420, the sum of Fifty Thousand Dollars ($50,000). If Fay Rucks is deceased, then said distribution shall be made to her children surviving the TRUSTOR, equally, share and share alike, or to the survivor of them.
9. Next, and after the payment provided for in the proceeding paragraphs 6 and 8, all of the rest, residue and remainder of the Trust, whether income or *41 principal, shall be distributed to the University of Southern Indiana Foundation to be used for Presidential Scholarships, or any lawful successor to the University of Southern Indiana or to any substitute or successor fund for the Presidential Scholarship Fund.

Appellant's App. pp. 26-28.

In August of 2001, Boelson hired Shannon Frank ("Frank") to amend her trust. Boelson allegedly presented Frank with a "hand-typed" note reflecting her desired changes. Appellant's App. p. 118. This note states in part, "[b]rother is beneficiary of and to receive two IRA accounts, automobile and any furnishings and personal property in the condo that he would like." Id. Boelson also requested her trust to be amended so her friend, Faye Rucks ("Rucks"), would receive $10,000 instead of $50,000.

On August 16, 2001, Boelson's trust was amended. The portions of this amendment relevant to the case at bar state:

Section 6 of said Trust Agreement shall be revoked in its entirety and the following provision inserted in its place, as if said provision had originally been included in said Trust Agreement:
"Upon the death of Marian Boelson (and upon the direction of her Personal Representative, if any) the Trustee shall pay any and all expenses connected with or arising on account of her death, including any funeral bills (in excess of the funds designated by Marian Boelson as part of her funeral and burial arrangements established with Boone Funeral Home, Evansville, Indiana), costs of last illness, inheritance, estate or succession taxes, court costs, attorneys or executor's fees, legally owing debts of Marian Boelson and any other costs of a like or similar nature, all of said payments to be made out of income first and then principal of this Trust."
Section 7 of said Trust Agreement shall be revoked in its entirety and the following provision inserted in its place, as if said provision had originally been included in said Trust Agreement:
"Upon the death of Trustor, the Trustor's brother, Richard A. Baker, if living, shall receive any and all proceeds and assets that were held in Trustor's individual retirement accounts, if any, as well as, all of Trustor's automobiles, furnishings and other personal property."
Section 8 of said Trust Agreement shall be revoked in its entirety and the following provision inserted in its place, as if said provision had originally been included in said Trust Agreement:
"After the payment of the sums described in Section 6 of this Trust Agreement, the Trustee shall distribute to Trustor's friend, Faye Rucks, presently residing at 850 Cherokee Road, Henderson, Kentucky, the sum of Ten Thousand Dollars ($10,000), if living, and if not living, then said funds shall become part of the residue of the Trust and be distributed according to the terms and conditions set forth in Section 9 of this Trust Agreement."
The remaining sections, terms and conditions of the Trust Agreement have not been amended and are hereby ratified, reconfirmed and republished.

Appellant's App. pp. 35-36 (emphasis added).

Boelson died on August 29, 2003. On March 1, 2004, Integra Bank N.A. Trust and Investment Management Group, as trustee, filed a petition to docket trust and a petition for interpretation. On March 12, 2004, Richard Baker ("Baker") filed his response, which alleged that he is the beneficiary *42 of Boelson's trust's personal property.

USIF responded to Baker's petition on March 26, 2004. USIF's petition alleged that Boelson's trust limits Baker's recovery to the items specifically bequeathed to him. Appellant's App. p. 48. USIF also claimed that the remainder of Boelson's personal and real property is residue of the trust, which must be given to USIF.

On July 27, 2004, USIF moved for summary judgment and designated evidence. USIF submitted the affidavit of Frank, which alleged that "Boelson requested that [Frank] draft the Amendment in such a way that her brother, [Baker], would receive of all [sic] her individual retirement accounts, if any, along with her automobiles, her furnishings and her other personal effects." Appellant's App. p. 60. Frank's affidavit also stated, "I did not use the term `personal property' in its technical sense" while amending Boelson's trust. Appellant's App. p. 61.

USIF also submitted the affidavit of Janet Esser ("Esser"), who was Boelson's trustee. Appellant's App. p. 62. Esser's affidavit stated that Boelson indicated to her that she hoped to live long enough for her gift to USIF to grow to be worth a million dollars. Id.

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