IN RE TIMMER ESTATE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of TIMMER.
DICK SCHIPPER, Personal Representative of the
ESTATE OF HERMINA JOSIE TIMMER, a/k/a
HERMINA SCHIPPER TIMMER, TIMOTHY
SCHIPPER, BONNIE SLENK, and LUANN
COLE,
UNPUBLISHED
May 17, 2011
Appellants,
v
KENNETH TIMMER, Trustee of the PETER J.
TIMMER TRUST,
No. 296154
Ottawa Probate Court
LC No. 09-056267-DE
Appellee.
Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ.
PER CURIAM.
Appellant estate appeals as of right from the trial court’s judgment after bench trial. We
conclude that the trial court failed to make sufficient factual findings as to the intent of the
parties. Accordingly, we reverse the trial court’s decision and remand for the trial court to
consider the extrinsic evidence, make appropriate factual findings, and render a decision based
on those findings. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
At issue in this case is the construction of language in the prenuptial agreement between
Hermina Timmer and Peter Timmer, entered into when they were married later in their lives and
each had children of their own. Their agreement, which they entered into on December 18,
1990, contained an ambiguity about the couple’s intent regarding their decision to jointly
purchase a condominium after marriage. Specifically, the paragraph at issue reads:
Jointly Held Property. Any property acquired by Husband and Wife during their
marriage, and expressly held as tenant by entireties or as joint tenants with full
rights of survivorship shall pass to the survivor of them by operation of law and
shall not be subject to any of the terms and conditions of this Agreement, no
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matter by whom purchased or acquired. Husband and Wife each promises to act
in good faith toward the other in the management of their joint property, if any.
Husband and Wife contemplate that they will be purchasing a condominium after
marriage. It is their intent that the condominium be held by them as tenants by
the entireties or joint tenants and that the surviving spouse shall have a life estate
in said condominium as long as the surviving spouse shall occupy said
condominium.[1]
When the couple subsequently purchased their condominium on May 31, 1991, the deed simply
contained a conveyance to “Peter J. Timmer and Hermina J. Timmer, husband and wife,”
without conditions, life estates, or any other identification of how the property was to be held.
Hermina died on January 17, 2008. On February 14, 2008, Peter deeded the
condominium to the “Peter Timmer Declaration of Trust.”2 In January 2009, Hermina’s heirs
sought informal probate of her will. Peter died on June 21, 2009. Hermina’s heirs (appellants)
requested a 50 percent interest in the condominium. Peter’s heirs (as his trust) moved for
summary disposition with regard to this claim, but the court denied the motion, stating that
summary disposition was inappropriate because the prenuptial agreement was ambiguous.
A bench trial was held on December 9, 2009. Hermina’s son, Dick Schipper, testified
regarding ledgers that Peter Timmer kept of Hermina’s assets. The ledgers showed Hermina’s
interest in the condominium as “one half.” He also testified that his mother had an eighth-grade
education, and that his parents together had owned a restaurant at which his mother worked. The
restaurant was sold before his father, Harold Schipper, died.
An expert in probate law, called as a witness for plaintiff, testified that the agreement was
“totally conflicting,” containing “obvious[] ambiguity and confusion arising out of the jointly
held property provision.” He stated that the paragraphs providing for separate property, for
jointly held property, and for termination led him to conclude that the likely intent of the parties
was that the property they owned was to be retained as separate property. He maintained that if
1
The agreement contained another provision the significance of which was questioned during
the litigation. It reads, “Termination. Husband and Wife may terminate this Agreement only by
a written document, dated, witnessed and signed by both. It shall automatically terminate upon
the deaths of both Husband and Wife, unless revoked sooner under the specific terms of this
Agreement.” The agreement was drafted by Peter’s brother, an attorney.
2
This deed contained what appears to be a fee simple conveyance from Peter as survivor of
himself and Hermina to Peter as trustee of the trust; but had the following further language:
Grantor herein reserves unto himself an exclusive life estate in the property
conveyed by this deed. Grantor also reserves unto himself the right to dispose of
the property during his lifetime by sale or gift free and clear of the rights of the
other joint tenants.
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the paragraph on jointly held property ended before the last sentence, there would not be an
ambiguity, but the added provision about what was essentially a life estate in the condominium
was “entirely inconsistent with tenancy by the entireties or joint tenants.” The expert also noted
that the prenuptial agreement’s termination provision would be unnecessary unless the parties
intended that there be “continuing rights and obligations after the death of the first person.”
Thus, the intent to keep the condominium as separate property could be “logically construed;”
otherwise the termination provision “doesn’t make any sense.” He concluded:
[W]hen they have a paragraph specifically addressing condominium and that
paragraph references that the survivor shall have a life estate, and when you have
the separate property provision with an exhibit showing that the parties had
property and they sold that property to invest in the condominium, I believe the
expectation and the intent is that is not be in a legal form of joint tenancy or
tenancy by the entireties, but they’re really talking about individually held,
undivided interest with the protection for the survivor of the life estate.
The expert also testified that to a lay person the language of the last sentence would have been
seen as an attempt to protect his or her spouse. However, he also admitted that, if this had been
their intent, the deed was inconsistent with that, and that the agreement itself did not create an
interest in property.3 His opinion was that the language in the prenuptial agreement was a
“contract between the parties that expressed an intent as to how they were going to handle the
condominium.”
Kenneth Timmer, Peter’s son, testified that his father “was pretty sharp . . . [e]ven up
until his death,” and that he understood the tenancy terms used in the prenuptial agreement and
the deed. Peter told Kenneth that he understood that if he died first, the condominium would go
to Hermina. As to the records Timmer, an accountant, testified that it would be proper to
account for joint property as “half-and half” in Hermina’s ledgers even if the parties believed
that the survivor would receive the property. He also admitted, however, that it would be also
accurate to report 100 percent of the property to each Hermina and Peter under such
circumstances.
After reviewing the evidence, the trial court, sitting without a jury, declared its findings
of fact in the following two terse paragraphs:
Basically the facts are that the—Hermina and Peter Timmer were married
on December 20, 1990. Two days before that, on December 18, 1990, they
3
He did note that it appeared to him that the parties were not represented by an attorney at the
time the deed was drafted, although he did not have personal knowledge of that fact. The copy
of the deed furnished to this Court contains only a notation that it was prepared “under direction
of Shorewood Realty.”
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executed this prenuptial agreement in contemplation of their marriage. And then
about five months after that, on May 31, 1991, they purchased this condo.
The deed conveying the condo to them indicates it’s conveyed to Peter J.
Timmer and Hermina J. Timmer, husband and wife. It does not mention the
phrase tenancy by the entireties. But as has been noted in the briefs, and also with
Mr. Brower, that when the language is used it’s presumed that there’s a tenancy
by the entireties intended. And I think we can conclude that that is pretty much
the language of the deed.
The trial court rendered no findings about the Timmers’ intent when they signed the contract.
Instead, the trial court construed the ambiguous language of the agreement on the basis of the
court’s legal interpretation of the document’s language, without reference to any facts of record:
At any rate in looking at this the Court has to construe that agreement.
And it is in fact ambiguous. However, the Court in construing the agreement
must do its best to give effect to all of the words in the agreement. That’s another
principle that’s been enumerated here today. And I am not at liberty to rewrite it
or to adopt interpretations which are not suggested by the language of the
agreement.
***
I have to look at this language and reach a reasonable interpretation of
what that language means and what the parties meant by it. But I’m not entitled
to simply throw it out and do something completely different. Something that
they never wrote or said in their agreement. Even if it may be fair in some
general sense to reach a result that is not called for by the language. It may be fair
in some general sense to just say I’ll just divide it 50-50 now. But I can’t do that
unless it’s suggested by language in the agreement.
Nowhere in the agreement does it mention the word common or tenancy in
common. Nowhere does it say that the parties are to divide the property either
upon the death of Hermina or upon the death of Peter. Nowhere in the agreement
does it say that the parties are to divide the property either upon the death of
Hermina or upon the death of Peter. Nowhere in the agreement does it say that
the survivor is to transfer one half the value of the property in cash to the other.
And that’s the request for relief here. None of those things are remotely
suggested by any language in that agreement. What we simply have here is a
statement that this condo that they intend to purchase that they intend to hold it as
joint tenants—or excuse me, as tenants by the entireties or joint tenants. But then
it contains that last little phrase about the life estate. In some ways that’s moot at
this point, because both parties have now died and neither has to worry about
whether the other has a life estate.
But I believe that it is most reasonable to construe this language and not to
simply rewrite the agreement to call it a joint tenancy with right of survivorship.
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That is the language that is used in the agreement. And it is true that that is
inconsistent with the last two lines. But it is more consistent to read that as
creating a joint tenant with right of survivorship. And then with life estate
language that is surplusage (sic) than to construe it as creating a joint tenancy.
There’s nothing in there that suggests what the percentage interest of the joint
tenants are. And there’s nothing that says that when one dies the other one gets
paid off. And that would take a lot of language, which is not in there. And I’m
not allowed by law to supply that sort of language to an agreement of this sort.
So the Court’s opinion of the . . . prenuptial agreement is that while
ambiguous I will construe it as creating a joint tenancy with right of survivorship.
That Peter Timmer survived Hermina Timmer, and that upon her death he became
the sole owner of the property.
We note that, although petitioners initially sought to have Peter Timmer transfer
Hermina’s 50 percent interest in the condominium to petitioners, their second amended petition
sought only payment of 50 percent of the market value of the condominium calculated as of
Hermina’s death, due to Timmer’s breach of the prenuptial agreement. Accordingly, this case
presents an issue of contract interpretation, which is a question of law, reviewed de novo.
Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006). To the extent the decision rests
on a finding of fact by the trier of fact, we review underlying factual decisions for clear error.
MCR 2.613(C). “A finding is clearly erroneous when a reviewing court is left with a definite
and firm conviction that a mistake has been made, even if there is evidence to support the
finding.” In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003).
“‘The cardinal rule in the interpretation of contracts is to ascertain the intention of the
parties. To this rule all others are subordinate.’” Shay v Aldrich, 487 Mich 648, 660; 790 NW2d
629 (2010), quoting McIntosh v Groomes, 227 Mich 215, 218; 198 NW 954 (1924). Generally,
if the language of a contract is unambiguous, it is to be construed according to its plain meaning.
Grosse Pointe Park v Mich Muni Liability & Prop Pool, 473 Mich 188, 197-198; 702 NW2d 106
(2005). However, if the language of a contract is ambiguous, courts may consider extrinsic
evidence to determine the intent of the parties. Id. at 198. A court may not ignore a portion of
the contract in order to avoid finding an ambiguity. Klapp v United Ins Group Agency, 468 Mich
459, 467; 663 NW2d 447 (2003). Where there is doubt, a contract is to be strictly construed
against the party by whose agent it was drafted. Shay, 487 Mich at 673, citing Mich Chandelier
Co v Morse, 297 Mich 41, 46; 297 NW 64 (1941). Where parties use both general and specific
terms, the latter will ordinarily be controlling. Sobel v Steelcraft Piston Ring Sales, Inc, 294
Mich 211, 219; 292 NW2d 863 (1940).
In this case, the trial court correctly found the agreement was ambiguous. The language
“tenants by the entireties or joint tenants” is in direct conflict with the very next phrase, “the
surviving spouse shall have a life estate.” When a married couple takes property as tenants by
the entirety, “both spouses have a right of survivorship, meaning that, in the event that one
spouse dies, the remaining spouse automatically owns the entire property.” Tkachik v
Mandeville, 487 Mich 38, 46-47, 790 NW2d 260 (2010). Thus, if these properties are not part of
a decedent spouse’s estate, the law of descent and distribution does not apply, id., and there is no
need to reserve a life estate for the surviving spouse as he or she would own the entire fee.
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Similarly, a joint tenancy, as opposed to a tenancy in common, would entail survivorship rights,
rendering the additional language unnecessary. See Albro v Allen, 434 Mich 271, 274-276; 454
NW2d 85 (1990).
Because of the ambiguity, the court needed to look beyond the express language to the
context and circumstances to determine the intent of the parties, and it was appropriate to review
the extrinsic evidence presented by the parties in doing so. However, after reviewing the trial
court’s decision we note that the trial court did not make explicit findings of fact, except with
respect to its decision not to consider the ledger evidence as persuasive on the question of intent.
Instead, it appears that the trial court attempted to decide the parties’ intent solely by reference to
what was included, or not included, in the language of the prenuptial agreement itself, and
concluded that, because the document did not contain a reference to tenancy in common with
respect to ownership of the condominium, it could not find that such was their intent. The trial
court’s insistence that it was not permitted to add language to the contract misconstrues the
court’s role. Extrinsic evidence is admitted “not to add or detract from the writing, but merely to
ascertain what the meaning of the parties is,” especially if that evidence reveals the
“contemporaneous understanding of the parties.” Klapp, 468 Mich at 469-470.
Where a contract is to be construed by its terms alone, it is the duty of the
court to interpret it; but where its meaning is obscure and its construction depends
upon other and extrinsic facts in connection with what is written, the question of
interpretation should be submitted to the jury, under proper instructions. [Id. at
469 (quotation marks and citations omitted).]
The Supreme Court, id., emphasized the finder of fact’s role in resolving contractual ambiguities,
by citing 11 Williston, Contracts (4th ed), § 30:7, pp 87-91:
“Where a written contract is ambiguous, a factual question is presented as
to the meaning of its provisions, requiring a factual determination as to the intent
of the parties in entering the contract. Thus, the fact finder must interpret the
contract’s terms, in light of the apparent purpose of the contract as a whole, the
rules of contract construction, and extrinsic evidence of intent and meaning.”
Our Supreme Court summarized, “In resolving such a question of fact, i.e., the interpretation of a
contract whose language is ambiguous, the [finder of fact] is to consider relevant extrinsic
evidence.” Klapp, 468 Mich at 470.
In the trial court’s bench opinion, it interpreted the prenuptial agreement without
referencing any of the substantial record evidence of intent. For example, there is no
consideration of the expert’s trial testimony that lay people seldom understand such terms; and
that the language used, when coupled with the provision concerning separate property and the
fact that the two used separate property to purchase the condominium, indicated to him that the
Timmers’ intent was place the property in a form that would enable them to hold the property
jointly, albeit while retaining its character as separate property similar to the assets used to
purchase it, and in such a way as to ensure protection for the survivor of the life estate. This
opinion was certainly consistent with the ambiguity in the prenuptial agreement, as well as the
evident ambiguity in Peter’s subsequent deed to his trust. See note 2 supra. Likewise, the
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termination provision supports the conclusion, as the expert noted, that some rights and
obligations were to pass to the estate of the first-deceased spouse. Finally, the ledger shows that
the property was evenly divided between Hermina and Peter. However, there is no discussion by
the trial court as to how it weighed this evidence. Rather, the trial court appears to have
construed the document without considering the expert’s testimony or any other extrinsic
evidence.
Given the complete absence of pertinent factual findings, we cannot ascertain whether the
court simply ignored all evidence of record concerning the parties’ intent, or blended unspoken
factual findings with legal conclusions. In either case, the court failed to comply with MCR
2.517(A)(1), which requires, “In actions tried on the facts without a jury or with an advisory jury,
the court shall find the facts specially, state separately its conclusions of law, and direct entry of
the appropriate judgment.” “Findings of fact map the path taken by a trial court through
conflicting evidence.” Woody v Cello-Foil Products (After Remand), 450 Mich 588, 599; 546
NW2d 226 (1996) (dissenting opinion by WEAVER, J.). “Brevity in the articulation of factual
findings is not fatal, as long as the appellate body is not forced to draw so many inferences that
its review becomes merely speculative.” Id. Here, construction of the ambiguous prenuptial
agreement depended on a factual determination of the parties’ intent, derived from both extrinsic
evidence and the words the parties selected. The lack of factual findings regarding the intent of
the parties leaves this Court without the trial court’s map of the evidence. Rather than charting
our own course through a thicket of legitimate yet conflicting inferences, we reverse the trial
court’s ruling and remand for the trial court to make findings of fact and a determination of the
parties’ intent based upon those findings.
We reverse and remand for the court to make appropriate factual findings and determine
the parties’ intent based on those findings. We retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
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