Matter of Estate of Bol

429 N.W.2d 467, 1988 S.D. LEXIS 141, 1988 WL 96858

• Court: South Dakota Supreme Court
• Decided: September 21, 1988
• Docket: 16073
• Status: Published

Opinions

MILLER, Justice.

In this case of first impression, we address the issue of whether a subsequent will revokes a prior tentative (“Totten”)¹ trust.

FACTS

Decedent Henrietta A. Bol (Henrietta), established a passbook savings account in 1976 and purchased three 30-month money market certificates in 1980, 1981 and 1982 at the Brookings (South Dakota) Savings & Loan Association. These deposits were all issued in the name of “Henrietta A. Bol, Trustee for Margaret Tompkins” (Henrietta’s sister).

On August 11, 1983, Henrietta executed her last will and testament. This will directed that all of her debts and funeral expenses and expenses of last illness and administration of her estate be paid from the estate. It further provided that after payment of said expenses and debts:

... I give, devise and bequeath all of my estate and property, real, personal or mixed, and wheresoever situated, and over which I have the power to make testamentary disposition, to my brother, ARNOLD F. deBLONK, and my sister, MARGARET E. TOMPKINS, share and share alike ... (Emphasis added.)

In the will she also specifically disinherited three other brothers “because I feel the need of my brother ARNOLD and my sister MARGARET [is] greater than those of my said [disinherited] brothers or any members of their respective families.”

Henrietta’s will made no specific reference to the savings account or money market certificates that she previously had created in her name as trustee for her sister Margaret.

Henrietta died on May 23, 1985. At the time of her death, the trust deposits had a total value exceeding $52,000. Her other property included joint tenancy bank accounts with Margaret valued at over $2,400, a joint tenancy checking account with Arnold of approximately $314, two automobiles in joint tenancy with Arnold having a total value of $300, household furnishings valued at $3,000, and a balance due on a real estate deed of trust covering land in Idaho worth approximately $10,700. The costs of administration of the estate and expenses of her last illness exceeded $9,300.

Margaret, as executrix, petitioned for summary administration of the estate on July 1, 1985. The usual proceedings were followed, pursuant to SDCL 30-11-1 et seq., and subsequently the court entered findings of fact, conclusions of law and a decree of distribution.

Arnold later moved to set aside the decree of distribution, arguing that Henrietta’s last will had revoked the trust deposits and claiming that the passbook savings account and money market certificates should have been included as estate assets.

The trial court found that the deposits were, in fact, valid, tentative trusts. It further found that Henrietta’s will had revoked such trusts.

ISSUE

WHETHER THE PROVISIONS OF DECEDENT’S LAST WILL AND TESTAMENT REVOKED THE TENTATIVE TRUSTS.

DECISION

We must first observe that the validity of the trust arrangement is not properly before us. The trial court specifically held that a valid tentative, or Totten, trust had been created by Henrietta when she established the bank account and purchased the money market certificates. Although the validity of the trust was addressed in the briefs submitted by counsel, Arnold filed no notice of review which would allow us to consider the court’s ruling. SDCL 15-26A-22. Therefore, assuming, as we must, that a valid Totten trust was established, we will proceed to determine whether that trust was revoked by Henrietta’s subsequent will.

Courts, in interpreting wills, are required to construe them according to the intention of the testator. SDCL 29-5-1. The words of a will are to receive an interpretation which will give to every expression some effect, rather than an interpretation which renders any of the expressions inoperative. SDCL 29-5-9. Rowett v. McFarland, 394 N.W.2d 298 (S.D.1986); Estate of Bock, 85 S.D. 113, 177 N.W.2d 734 (1970). In examining Henrietta’s will in light of the mandates of SDCL 29-5-1 and -9, we affirm the trial court’s ruling that the will revoked the tentative trusts created by Henrietta.

Generally, a tentative trust may be revoked by (1) the depositor withdrawing the deposit, (2) the depositor’s unequivocal act or declaration of disaffirmance, (3) the beneficiary predeceasing the depositor, (4) the terms of the will of the depositor, and (5) by facts and circumstances resulting in the inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administrative expenses, taxes, and other charges. See generally Annot., Revocation of Tentative (“Totten”) Trust of Savings Bank Account by Inter Vivos Declaration or Will, 46 A.L.R.3d 487 (1972), and Scott, The Law of Trusts, § 58.4 (3d ed. 1967).

As stated in Restatement (Second) Trusts § 58 Comment (c) (1959), “[a] tentative trust ... can be revoked by the depositor at any time during his lifetime, by a manifestation of his intention to revoke the trust. No particular formalities are necessary to manifest such an intention.” See also Annot., 46 A.L.R.3d at 493, wherein it is stated that

[ virtually all courts adopting the ... doctrine adhere to this liberal policy and recognize that a Totten trust is effectively revoked where some declaration of depositor, regardless of form, and regardless of whether made inter vivos or in a will, sufficiently expresses or implies the existence of a revocatory intent.

Initially, we agree with the majority of jurisdictions holding that a residuary clause in a will, standing alone, is insufficient to impliedly revoke the tentative trust. Bracks v. Home Fed. S & L Assn., 36 Cal.2d 845, 228 P.2d 545 (1951); Re Estate of Basch, 41 Misc.2d 773, 246 N.Y.S.2d 244 (1964); Re Greniewich’s Will, 243 App.Div. 811, 278 N.Y.S. 279 (1935); Re Richardson’s Estate, 134 Misc. 174, 235 N.Y.S. 747 (1929); Re Pozzuto’s Estate, 124 Pa.Super. 93, 188 A. 209 (1936); Annot., 46 A.L.R.3d 509-10 (1972).

Further, we agree with the majority of courts which hold, in cases where the trust was not specifically revoked, that we must resort to a consideration of surrounding circumstances in order to determine whether the true intention of the depositor was to revoke the Totten trust. See, e.g., Cowry v. Maloney, 5 N.J. 590, 76 A.2d 899 (1950); Re Estate of Krycun, 24 N.Y.2d 710, 301 N.Y.S.2d 970, 249 N.E.2d 753 (1969); Re Phipps’ Will, 125 N.Y.S.2d 606 (1953); Nace v. Fulton Co. Nat. Bank, 79 Pa. D. & C. 325 (1951); Annot., 46 A.L.R.3d 493-97 (1972).

In order to determine whether the depositor intended to revoke the tentative trust, courts have considered the following factors: (1) whether subsequent to the alleged revocation (e.g., through a later will), the depositor continued to treat the deposits consistent with the trust (e.g., by maintaining the account in trust form, by activity or inactivity of the account, etc.); (2) retention of possession of the account passbook or certificates; and (3) whether, absent the Totten trust, sufficient assets exist in the estate to effectuate the specific dispositions provided in the will, including directions for the payment of costs and expenses. See Conry, supra; Krycun, supra; Nace, supra; Re Beck’s Estate, 173 Misc. 733, 19 N.Y.S.2d 83, aff'd mem., 260 App.Div. 651, 23 N.Y.S.2d 525 (1940); Re Schiffer’s Estate, 142 Misc. 518, 254 N.Y.S. 871 (1931); 46 A.L.R.3d 493-97 (1972).

We observe, as did the trial court in its findings, that the money market certificates were never cashed or altered, but rather were automatically renewed for a like period at maturity, and there was no evidence offered as to any withdrawals or deposits from the passbook savings account. We further observe that the evidence does not clearly show whether Margaret was notified of the existence of the accounts or whether she had possession of any of the certificates or the account passbook during Henrietta’s lifetime. Moreover, Henrietta’s will specifically bequeathed her property equally, “share and share alike” to Arnold and Margaret, while disinheriting three other brothers because of Arnold and Margaret’s greater need. Finally, we note that if the trusts were not recognized as revoked by the will, Margaret would receive approximately eight and one-half times more of the estate property than Arnold, who would receive merely a negligible distribution of the estate, and that the estate’s available liquid assets would be insufficient to pay the debts and costs of administration and expenses of Henrietta’s last illness.

The trial court, considering all of the foregoing, concluded that Henrietta’s will, read in its entirety and especially considering the lack of liquidity of her estate absent the trust property, evinced her intent to revoke the Totten trust over the deposits.

Although we are not bound by the trial court’s interpretation of the will nor by its conclusions of law, Diamond Intern. Corp. v. Glad, 330 N.W.2d 526 (S.D.1983); Johnson v. Johnson, 291 N.W.2d 776 (S.D.1980), we agree with its analysis and holding. When considering and applying all of the appropriate factors, together with the specific language of the will, it is clear that to hold to the contrary would contravene the true intention of Henrietta.²

For all of the foregoing reasons, we agree with the trial court and affirm in all respects.

WUEST, C.J., and MORGAN, J., concur. HENDERSON, J., concurs with writing. SABERS, J., dissents.

1 . The tentative or Totten trust was originally recognized in In re Totten, 179 N.Y. 112, 124-126, 71 N.E. 748, 752 (1904), wherein the court held:

A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, recoverable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.

2 . Margaret argues that the language in the will wherein Henrietta devises her estate "over which I have the power to make testamentary disposition," negates any intent to revoke the trust. We perceive that to be mere "boiler plate" language which, standing alone, is in no manner dispositive.