Jarrett v. United States National Bank

725 P.2d 384, 81 Or. App. 242
CourtCourt of Appeals of Oregon
DecidedSeptember 10, 1986
DocketA8205-02951; CA A32549
StatusPublished
Cited by18 cases

This text of 725 P.2d 384 (Jarrett v. United States National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarrett v. United States National Bank, 725 P.2d 384, 81 Or. App. 242 (Or. Ct. App. 1986).

Opinions

[244]*244WARREN, J.

Plaintiffs, two of the residuary beneficiaries of a trust which has terminated, commenced this action for breach of trust, seeking declaratory relief and damages. They claim that defendant United States National Bank breached its duty as trustee by imprudently renewing a lease of real property, which was the principal trust asset, and by failing for seven years to require payment of a demand note which was also a trust asset. The trial court concluded that the trustee acted prudently and did not breach its duty and entered judgment for defendants. Plaintiffs appeal. We review de novo.

Paul Schatz (Senior) was the settlor of the inter vivos trust which this case concerns. The trust was created on March 12, 1971, and was funded with 403 shares of stock in Senior’s business, the Paul Schatz Furniture Company (Company), and the real property and furniture store building on N. E. 41st Avenue in Portland. Senior reserved the right to receive payments of income and to withdraw principal from the trust during his life as he directed. He executed a will on the same date as the trust. The will left Senior’s personal effects to his wife, his shares of stock in Company to his son, Paul Schatz, Jr. (Junior), and the residue to the trust. The trust provided that, after Senior’s death, Junior was to receive the remaining shares of stock in Company and the trustee was to pay to Senior’s wife all the income from the remaining assets and had authority to invade the principal to maintain her standard of living. After the wife’s death, the trustee was to distribute all the real property to plaintiffs, Senior’s two daughters, and to distribute the rest of the trust corpus equally among those two daughters and his son.

Shortly after executing the trust and the will, Senior executed a lease of the real property to Company. The lease was pre-dated to July 1, 1970, was for a five-year term and reserved a rent of $2,100 per month. The lease gave the lessee “four five-year successive options to renew this lease for an additional five years each upon the same terms and rental payments” upon giving the lessors written notice of intent to renew at least 120 days before the termination of the lease period. It also provided that “[t]ime and the punctual and exact performance and observance * * * of the conditions herein contained are of the essence of this lease.” The lease [245]*245also gave the lessee the right of first refusal if the lessors received an offer to purchase the building.

Another trust asset was a promissory note payable on demand for $36,548.98, dated March 1, 1971, from Company to Senior, which bore interest at seven per cent per year on the unpaid balance. After Senior’s death in October, 1973, the lease and interest on the note were the sole sources of his widow’s income from the trust. She died on August 31, 1980.

Plaintiffs first claim that the circumstances under which the trustee permitted Company to renew the lease in 1975 involved a breach of the trustee’s fiduciary duty. Company and Junior are also named as defendants in this action. The original lease term of five years expired on June 30,1975, and Company had until March 2, 1975, to give written notice of its intent to exercise its option to renew the lease. The bank did not receive that notice, and on June 11, 1975, the bank’s real estate trust officer first discovered the renewal option and became aware that Company had not yet exercised it. He then contacted Junior, informed him that the time to exercise the option had passed, and asked him to exercise the option. Junior did exercise the option for Company, by letter dated June 16, 1975. The trustee made no effort to renegotiate or terminate the lease, as it could have done because the lessee did not comply with the 120-day notice condition of the renewal option. Defendant’s trust officer testified that, before renewal, he had evaluated the reasonableness of the rent based on the return on investment and on comparable properties’ rentals and concluded that it was reasonable. He did not recall if he had conducted this evaluation before or after he contacted Junior.

Plaintiffs claim that the trustee breached its duties of prudent management1 and loyalty by failing to test the market to determine if it could obtain a lease which was more favorable to the beneficiaries when it had the opportunity. [246]*246They introduced evidence that the market rent for the premises was $3,340 per month on June 1, 1975. The trustee conceded, in closing argument, that $2,100 was below market value, but argued that it effectuated the settlor’s intent by waiving the 120-day notice requirement and renewing the lease. In order to establish the settlor’s intent, Bank offered double hearsay concerning Senior’s intent to perpetuate his business after his death. Plaintiffs assign error to the admission of this statement, to the court’s finding that the settlor intended that Company operate at the same location with the same rental for the entire 25 years of the lease and to the court’s concluding that Bank did not breach its fiduciary duties in renewing the lease.

When a will or a trust instrument is fully integrated and is not ambiguous on its face, extrinsic evidence is not admissible to establish the testator’s or settlor’s intent. Roehr v. Pittman, 256 Or 193, 472 P2d 278 (1970); Rowe v. Rowe, et al, 219 Or 599, 608, 347 P2d 968 (1959); Allen v. Hendrick, 104 Or 202, 212, 206 P 733 (1922). The trust instrument on its face was not ambiguous and did not indicate any purpose of Senior to favor Company. Bank argues that the trust and the lease were silent as to what Senior intended the trustee to do if the lessee failed to give the 120-day notice of renewal and that extrinsic evidence is admissible to establish his intent in this case. We do not agree. The lease unequivocally stated that “[t]ime and the punctual and exact performance * * * of the conditions * * * are of the essence of this lease.” The instruments do not indicate that the settlor intended the trustee to be lenient with regard to waiving the notice condition. If anything, they indicate the opposite. Because the instruments are not ambiguous as to the consequence of failure to comply timely with the lease conditions, extrinsic evidence as to the settlor’s contrary intent is not admissible.

The dissent argues that the extrinsic evidence is admissible to put the court in the position of the settlor to ascertain his intent. The court has no occasion to put itself in the settlor’s position when it construes a fully integrated, unambiguous trust document, because the intent of the settlor can be ascertained from the face of the document. ORS 42.220 and ORS 41.740 permit a court to consider the circumstances surrounding the execution of an agreement only when the agreement is ambiguous on its face or is not fully integrated. [247]*247Bonded Credit Co. v. Hendrix, 282 Or 35, 576 P2d 795 (1978); Webster et ux v. Harris, 189 Or 671, 677-78, 22 P2d 644 (1950). Resort to extrinsic evidence to make an unambiguous document ambiguous is not permissible, but that is the sole purpose of the dissent’s resort to it in this case. See Sund & Co. v. Flagg & Standifer Co., 86 Or 289, 299, 168 P 300 (1917).

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Jarrett v. United States National Bank
725 P.2d 384 (Court of Appeals of Oregon, 1986)

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Bluebook (online)
725 P.2d 384, 81 Or. App. 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarrett-v-united-states-national-bank-orctapp-1986.