2004-200, JANET KING v. PAUL S. ONTHANK, JR.

The funding of the Family Trust was to come from her estate and two inter Trust (Family Trust), to be administered by King and Onthank as co - trustees. shares.” Her estate plan called for the funding of the Lillian F. Onthank Family her estate. She also left them her personal property “in substantially equal daughter, Janet King, who is the petitioner, and Onthank as co - executors of 1994. She died on November 26, 2000. In her will, she appointed her Lillian F. Onthank executed her last will and testament on October 13,

settlement of the estate of his mother, Lillian F. Onthank. We affirm. from orders of the Carroll County Probate Court (Patten, J.) issued during the GALWAY, J. The respondent, Paul S. Onthank, Jr. (Onthank), appeals

Claudine C. Safar on the brief, and Mr. Cooper orally), for the respondent. Cooper, Deans & Ca rgill, P.A., of North Conway (Randall F. Cooper and

brief and orally), for the petitioner. Ingersoll Professional Assoc., of Concord (Douglas L. Ingersoll on the

No. 2004 - 200 Carroll County P robate Court

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

ascertained from the language of the entire instrument, that governs the Estate, 117 N.H. 9 p. 2 22, 923 (1977). Similarly, it is the settlor’s intent, as enforce it unless it is illegal or impossible to do so. In the Matt er of Shirley interpretation of a will, and, this intent being ascertained, the court must It is well settled that the testator’s intent is the sovereign guide in the

rather than the date of the distribution in April p. 2 2003. proper valuation date is the date of the testator’s death in November 2000, the assets to be distributed through the Family Trust. He contends that the On appeal, Onthank challenges the probate court’s date of valuation of

We review questions of law de novo. Hollett, 150 N.H. at 4 p. 2 2. A:4 (1997); In re Estate of Hollett, 150 N.H. 39, 42 (2003) (quotation omitted). plainly erroneous that such findings could not be reasonably made.” RSA 567 - We will uphold findings of fact of t he judge of probate unless “they are so

I. Valuation Date

to be unsupported. and caretaker services since his mother’s death. The court found these claims tax, as if the property had been sold; miscellaneous out - of - pocket expenses; for the first time, claims for a real estate broker’s commissi on and capital gains value of Kona on April 1, p. 2 2003, was $950,000. At the hearing, Onthank raised, trust assets, the court adopted the parties’ agreement that the fair market Following a hearing on the issue of equalizing the distribution of the

documents, and that this decision carried out the settlor’s underlying intent. demonstrated by numerous provisions in the various trust and testamentary in tended to provide an equal benefit to the parties, which was clearly valuation date would be April 1, p. 2 2003. The court found that the settlor trust to the beneficiaries . . . .” After a further hearing, the court ruled that the Family Trust is properly at a date near or on the date of distribution from said date for assets distributed through the provisions of the Lillia n F. Onthank supporting memoranda of law, the court ruled: “[T]he proper asset valuation Based upon the parties’ pleadings, estate planning documents, and

valued as of the date of distribution. distribution of the Family Trust assets and a ruling that the property sh ould be petition in the probate court seeking, among other things, a decree of the probate estate and distributing the assets. In January p. 2 2003, King filed a Disagreements between King and Onth ank caused difficulty in closing

property known as Kona. vivos trusts, one of which was a personal residence trust containing a lakefront p. 3 3

expresses a desire, not a mandate. See Restatement (Second) of Trusts § p. 3 347 include Kona “if possible.” The “if possible” language here is precatory; it Second, the settlor c learly expressed her intent that Onthank’s half

trustees, and were to divide the trust estate into halves. Pursuant to the Family Trust documents, the children were appointed as co equal shares,” with the residuary estate going to fund the Family Trust. her estate. Her will required that they divide tangible pro perty in “substantially First, the testator mandated that her children share equally in the benefits of comment b at 200, comment c at 200, comment e at 201, comment h at 20 p. 3 3. Bartlett, 128 N.H. at 504. See gene rally Restatement (Second) of Trusts § 347 the trust assets. See In the Matter of Shirley Estate, 117 N.H. at 923; see also the equitable date for valuation was approximately the date of distribution of the language used in th e will and trusts supports the trial court’s findings that Although the settlor did not specify a date of valuation, we conclude that

termination of the inter vivos trusts (i.e., the date of death). contends that the trustees had a duty to distribute the property upon the language in connection with “the Trustees shall divide” lang uage. Thus, he contention, he specifically looks to the “upon the death of the Grantor” the date of death as the date for the distribution of assets. To support his Onthank argues that the pla in language of the Family Trust provides for

Jr. and his issue. placed if possible in the share which devolves to Paul S. Onthank, it is the Grantor’s desire that the property known as Kona be Onthank, Jr. . . . . In allocating the assets of the Grantor’s estate, Trustee shall . . . pay the net income to the Grantor’s child, Paul S. stirpes. The second half of the estate shall be held in trust and the distributed free of trust to the Grantor’s child Janet F. King, per Trust Estate in two parts. The first half of the estate shall be Annuity Trust shall not have expired, the Trustees shall divide the F. Onthank Personal Residence Trust and the Lillian F. Onthank If, upon the death of the Grantor, the fixed term set in the Lillian

The First Amendment to the Fam ily Trust states, in pertinent part:

1 p. 4 46 N.H. at 507. competent evidence and not by rules of law. Bartlett, 128 N.H. at 505; Lanoue, (Wis. 1972). The settlor’s intent is a question of fact to be determined by Bartlett, 128 N.H. at 504; see al so In re Estate of Naulin, 201 N.W. 2d 599, 602 valuation date of assets used to satisfy a testamentary bequest in trust. See 507 (2001). The settlor’s intent also governs the probate court’s choice of the 504 (1986); s ee also Lanoue v. Comm’r, Soc. Security Admin., 146 N.H. 504, distribution of assets under a trust. See Bartlett v. Dumaine, 128 N.H. 497, 4

He argues, therefore, that the court should have reduced the equalization other out - of - pocket expenses and [caretaking] services provided by [Onthank].” commissions, and the capital gain tax liability caused by that appreciation, and Family Trust was burdened by the costs associated with the real estate benefited by one - half of the appreciated value of the real estate, while the King as an equalization amount. He contends that “[King] was specifically Onthank next argues t hat the court erred in establishing what he owed

II. Equalization Amount

of distribution as the date of valuation. under the facts of this case, that the court did not err in establishing the date value s of the assets to be distributed were agreed to or determined. We hold, equal beneficial interest. This determination could not be made until the share only if that inclusion was possible without adversely affecting King’s intent to distribute the property equally, and to include Kona in Onthank’s the date of valuation was consistent with the clear expre ssion of the settlor’s been made. See RSA 567 - A: p. 4 4. As the court stated, its determination regarding the settlor’s intent is so plainly erroneous that it could not have reasonably The appellant has not demonst rated that the court’s finding regarding

the settlor’s intent to equally benefit her children. any such findings. The probate court’s stated “paramount consideration” was breached any duty, and the record before us does not compel the making of asset values, the probate court did not find that King acted unreasonably or Although the parties’ lengthy negotiations failed due to disagreements on

had to be agreed upon or determined prior to distribution. were to receive one hal f of the assets of the trust, the value of all of the assets unreasonably delayed. His argument ignores, however, that since both parties “beyond all bounds of reasonableness,” and therefore, the distribution was not to “cooperate” in the distribution of the estate, and that her actions went of assets.” He argues that it was a “breach of [King’s] duty to the beneficiaries” valuation date, he attempted to have King “commit to resolving the distribution Onthank maintains that prior to the court’s involvement in choosing a

adversely affect Ki ng’s equal share. direction of the trustees pursuant to the precatory language only if it did not specific devise. Accordingly, Kona would be distributed to Onthank by the and Procedure § 37 - p. 4 4, at 434 (2001). Here, we do not construe Kona to be a generally 10 C. DeGrandpre & W. Treat, New Hampshire Practice, Probate Law it is clearly so intended. See Wallace v. Wallace, 23 N.H. 149, 1 p. 5 53 (1851). See specific devisees, courts are not inclined to construe a devise as specific unless comment c at 200, comment e at 201. Because special advantages accrue to 5

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and DUGGAN, JJ.,

probate court to deny Onthank’s request to reduce the equalization amount. not. For these reasons, w e conclude that it was not an error of law for the had rent - free access to the property since his mother’s death; whereas King did support his claimed additional out - of - pocket or caretaking expenses, and he and lacking in factual basis. Moreover, Onthank presented no evidence to supports the probate court’s finding that the amounts are purely speculative taxes paid, and thus the Family Trust was not burdened with such. The record fact — there were no real estate commissions, auctioneer’s fees, or capital gains We conclude, however, that Onthank’s argument overlooks a crucial

liability that would have been assessed had Kona been sold. been paid in real estate commissions or auctioneer’s fees, and capital gains tax amoun t by $49,267. p. 5 50, or one - half the sum of deductions that would have