IN RE NATHAN GREENBERG TRUST
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In re NATHAN GREENBERG TRUST.
ASHLEY TECHNER,
UNPUBLISHED
October 21, 2010
Petitioner-Appellant,
v
No. 292511
Oakland Probate Court
LC No. 2008-315283-TV
EDWARD ROSENBAUM, BARRY
GREENBERG, and HELEN GREENBERG,
Respondents-Appellees.
Before: MURRAY, P.J., and K. F. KELLY and DONOFRIO, JJ.
PER CURIAM.
In this probate action, petitioner, Ashley Techner, appeals as of right the trial court’s
order granting summary disposition for respondents, Edward Rosenbaum, Barry Greenberg, and
Helen Greenberg. We affirm.
I. BASIC FACTS
This litigation concerns the meaning of a trust created by Nathan Greenberg (hereinafter,
the settlor). The settlor created the trust in 1974 and he amended it numerous times over the
years, the final amendment occurring on April 3, 1989. On May 22, 1992, the settlor died. At
the time, petitioner, who is the settlor’s granddaughter, was twelve years of age.
Upon the settlor’s death, the trust called for a division of assets into two separate shares,
one a “marital portion” and another a “family portion.” The family portion, which is at issue in
this appeal, was to include certain assets to be distributed in a manner outlined by the trust.
Petitioner was listed in the trust as a beneficiary of the family portion. However, she received no
funds at the time of the settlor’s death and allegedly was not provided with an accounting.
In 2008, petitioner filed a petition for accounting and alleged that respondents had
breached their fiduciary duty to account for the funds. Subsequently, respondents filed a petition
of accounting indicating that no funds remained in the family portion to be distributed.
Petitioner objected to this accounting, arguing that respondents failed to provide proper
documentation. In response, respondents moved for summary disposition under MCR
-1-
2.116(C)(8) and (C)(10), arguing that the family portion of the trust had been distributed
consistent with terms of the trust, that the family portion was depleted and their accounting was
accurate, and asking the trial court to enter an order allowing their accounting. At the motion
hearing, the trial court ruled in respondents’ favor. It determined that the language of the trust
was unambiguous and that the settlor’s intent was clear. This appeal followed.
II. STANDARDS OF REVIEW
We review “de novo a trial court’s decision on a motion for summary disposition.” Allen
v Bloomfield Hills School Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). Although
respondents brought their motion for summary disposition pursuant to MCR 2.116(C)(8) and
(C)(10), the trial court relied on evidence outside the pleadings and, thus, we consider
respondents’ motion as based on MCR 2.116(C)(10). Hughes v Region VII Area Agency on
Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). A motion for summary disposition based
on MCR 2.116(C)(10) is properly granted “if there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow
Co, 480 Mich 105, 111; 746 NW2d 868 (2008). In determining whether the trial court properly
granted respondents summary disposition under this subrule, we must consider “the pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the
nonmoving party.” Id.
Further, we review “de novo the language used in wills and trusts as a question of law.”
In re Estate of Reisman, 266 Mich App 522, 526; 702 NW2d 658 (2005). Our review is
governed by several well-established principles, which this Court recognized in In re Estate of
Kostin, 278 Mich App 47, 53; 748 NW2d 583 (2008):
In resolving a dispute concerning the meaning of a trust, a court’s sole objective is
to ascertain and give effect to the intent of the settlor. The intent of the settlor is
to be carried out as nearly as possible. This intent is gauged from the trust
document itself, unless there is ambiguity. If ambiguity exists, the court must
look outside the document in order to carry out the settlor’s intent, and may
consider the circumstances surrounding the creation of the document and the
general rules of construction. The powers and duties of the trustees, and the
settlor’s intent regarding the purpose of the trust’s creation and its operation, are
determined by examining the trust instrument. This Court must attempt to
construe the instrument so that each word has meaning. [Citations omitted.]
To carry out the drafter’s intent, this Court “must read the [trust] as a whole and harmonize all
the provisions, if possible, to that intent. Given the complexity of some [trusts], it would be
counterproductive for this Court to hyperanalyze and overscrutinize clear, plain language the
testator used.” In re Estate of Bem, 247 Mich App 427, 434; 637 NW2d 506 (2001) (quotation
marks omitted).
III. ANALYSIS
At the outset, we reject petitioner’s argument that the trial court acted outside its
authority in reviewing respondents’ motion for summary disposition because it allegedly ignored
the standard of review by impermissibly making factual findings and by improperly relying on
-2-
extrinsic evidence in interpreting the trust. These arguments are without support in the record
and do not provide grounds for reversal. Nothing in the record suggests that the trial court relied
on parol evidence in interpreting the settlor’s trust. Nor is there any indication in the trial court’s
ruling that it engaged in impermissible fact finding. Rather, it merely interpreted the language of
the trust, which it viewed as unambiguous. “When it is unnecessary to consider extrinsic
evidence to interpret a will, as is almost always the case, a probate court’s findings are not
factual in nature.” In re Estate of Bem, 247 Mich App at 432-433.
Turning to the language of the settlor’s trust, we also disagree with petitioner’s
contention that the trial court’s interpretation was erroneous. Here, Article V of the trust controls
the “distribution of income and corpus of the trust estate subsequent to the settlor’s death.”
Section (a) of Article V provides for the “allocation of the trust estate.” Pertinent to this appeal
is section (a)(2) of Article V, which mandates that the settlor’s estate be divided into two
separate shares, a family portion and a marital portion. Section (a)(2) then articulates what the
family portion shall consist of. It states:
The Family Portion shall consist of such amounts of cash or other assets
of the Trust Estate which are includable in the Settlor’s gross estate for Federal
Estate Tax purposes, and which, when added to the value of all Non-qualifying
Property includable in the Settlor’s gross estate passing other than by the terms of
this Section (a)(2) of Article V, shall have a value equal to the maximum amount
which, considering the unified credit and any other credits allowable on the
Federal Estate Tax return of the settlor’s estate pursuant to the provisions of the
Internal Revenue Code in effect at the date of the Settlor’s death, will result in no
Federal Estate Tax payable by reason of the death of the settlor. . . . [Emphasis
added.]
In other words, the family portion is to include an amount of “cash and assets” that is equal to a
value, the maximum amount of which, will not result in the levying of a Federal Estate Tax at the
time of the settlor’s death. The parties do not dispute that when the settlor passed away in 1992,
the maximum allowable amount not subject to taxation under Federal Estate Tax scheme was
$600,000. Thus, consistent with the plain language of section (a)(2) of Article V, the family
portion could not include an amount more than $600,000.
Section (a)(2) of Article V also designates the particular types of “cash and assets” that
shall make-up the family portion, including “non-qualifying property” remaining after the
settlor’s funeral expenses and other debts are paid, assets not included in the gross estate for tax
purposes, and any ownership interest in A. J. Marshall Company (AJM), a Michigan corporation.
It provides:
In allocating such property to the Family Portion, there shall first be allocated
thereto any non-qualifying property remaining after payment of the obligations set
forth in section (a)(1) of this article V [addressing administration and funeral
expenses]. In addition, there shall be included in the Family Portion assets of the
Trust Estate which are not included in the gross estate for such tax purposes, if
any. There shall also be included in the family portion all ownership interest, if
any, in [AJM], a Michigan Corporation, or successor. All of the property
allocated to or included in the family portion pursuant to the provisions of this
-3-
Section . . . shall be held, managed and disposed of in accordance with the
provisions of Section (c) of this Article V. [Emphasis added.]
This section does not designate an order of priority by which these assets must be included in the
family portion. However, section (c) of Article (V), titled, “Family Portion,” controls how the
family portion shall be held, managed, and disposed of and provides in relevant part:
(c)(1)
The Trustees shall distribute to the Settlor’s son, BARRY S.
GREENBERG, all ownership interests, if any in [AJM], or successor, free and
discharged from the Trusts thereof. . . .
(c)(2) The balance of the property of the Trust Estate required to be held,
managed and disposed of pursuant to this Section shall be divided into equal
shares, five (5) for the Settlor’s son, BARRY S. GREENBERG, five (5) for the
Settlor’s daugher, ESTHER S. KAPLAN, four (4) for the Settlor’s
granddaughter, ASHLEY L. GREENBERG, four (4) for the Settlor’s
granddaughter, RACHEL N. GREENBERG, and two (2) for the Settlor’s
grandson, STEVEN GRANITZ. . . . [Emphasis added.]
Sections (c)(1) and (c)(2) imply that AJM must be included in the family portion before other
assets are included because it mandates that AJM be distributed to respondent Barry, with the
“balance of the property” to be disposed of in five equal shares. Further, reading sections (c)(1)
and (c)(2) in conjunction with section (a)(2), reveals that the Settlor intended to fund the family
portion first with the AJM ownership interest, and then with cash and remaining assets, up to the
maximum amount that would not result in a levying of a federal estate tax at the time of the
settlor’s death. Thus, consistent with the trial court’s interpretation, we are of the opinion that
the settlor intended the trustees to fund the family portion first with the settlor’s interest in AJM
and then with other cash and assets, which in sum shall not consist of more than $600,000. The
trial court did not err in its interpretation of the trust.
Petitioner, however, argues that the trust instructs that the family portion “shall also
include” the AJM ownership interest, only after $600,000 of cash or other assets were allocated
to the family portion. In support of this argument, petitioner asserts that the trial court conflated
the meaning of the words “allocated” and “included,” and that the trial court’s interpretation
renders nugatory the trust’s provisions that create individual beneficiary trusts. These arguments
are unavailing.
First, the distinction between the definition of “allocate” and the definition of “include”
as petitioner defines them, does not suggest that petitioner’s interpretation of the trust is correct.
Those words simply have no relevance to the issue of the order in which assets must be included
in the family portion. Neither term denotes a sequential relationship.
Second, petitioner’s related argument, that the trial court’s interpretation renders nugatory
the trust’s provisions related to the creation of individual beneficiary trusts, is simply untrue.
The language of the trust, when read as a whole, indicates that the creation of individual
beneficiary trusts funded by the family portion, was contingent upon a “balance” remaining in
the family portion after distribution of AJM to respondent Barry. Thus, because at the time of
the settlor’s death, the value of AJM was such that it completely filled the family portion, all
-4-
funds were distributed to respondent Barry and no other individual beneficiary trusts were
created. Thus, the individual trust provisions, at the time of the settlor’s death, remained
inoperative. Petitioner fails to recognize that her interest in the family portion was a contingent
interest. Thus, the language creating individual trusts is not meaningless; rather, it was simply
rendered ineffective due to the factual circumstances at the time of the settlor’s death.1
Finally, in light of the trial court’s correct interpretation of the settlor’s trust, we are also
of the view that the trial court did not err by allowing respondents’ petition of accounting. As
noted, under the circumstances, the family portion was depleted after distribution of AJM to
respondent Barry and no funds from the family portion were available to fund individual trusts.
No evidence has been presented showing otherwise and, indeed, the parties do not dispute the
value of AJM at the time of the settlor’s death. The trial court did not err by granting summary
disposition in respondents’ favor.
Affirmed.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
1
Moreover, we note that subsequent distributions may still be made consistent with section (c)
of Article V. Section (a)(3) of Article V provides that all remaining property not included in the
family portion shall be allocated to the marital portion and “shall be held, managed, and disposed
of in accordance with the provisions of section (b) of this Article V. . . .” Section (b) of Article
V indicates that upon the settlor’s wife’s death, a portion of her marital share shall be allocated to
the family portion and disposed of in accordance with section (c) of Article V. Thus,
distributions consistent with section (c) of Article V may occur upon the death of the settlor’s
wife.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
