Date: 11-21-2017

Case Style:

Case Number: WD80393

Judge: Anthony Rex Gabbert

Court: Missouri Court of Appeals, Western District on appeal from the Circuit Court, Lafayette County

Plaintiff's Attorney: Bob Schnieders

Defendant's Attorney: Michelle M. Burge

Description: Native American Rights Fund, et al. (“Appellants”) appeal a trial court’s entry of summary
judgment in favor of Joseph Wilkinson and Donna L. Tweedie (“Respondents”), who are the
successor co-trustees of the Nelvada Dean Trust (“Trust”). Appellants raise two points on appeal.
Both points contend the court erred, because it relied on extrinsic evidence to interpret an
unambiguous trust provision. We affirm.
Background
The Trust owns a 300-acre tract of land. Following the death of Nelvada Dean (“Trustor”)
on December 9, 2012, Respondents hired a land surveyor to except out of the 300 acres a
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rectangular tract (“Rectangle”) containing Native American mounds and other sacred sites, per the
amended trust document. Respondents offered to deed the Rectangle to Appellants, but Appellants
refused, insisting on an archaeological survey of the 300 acres to determine whether additional
Native American sites exist.
On March 16, 2016, Respondents filed a petition for declaratory judgment, alleging the
Rectangle satisfied the Trust’s bequest. Appellants filed an answer and three counterclaims to
Respondents’ petition. Appellants’ answer argued Trustor never intended to restrict the Rectangle
to sites known to Trustor. Appellants’ counterclaims argued for declaratory judgment (requiring
an archaeological survey), removal of successor co-trustees, and attorney fees. The parties then
executed a joint stipulation of material facts. Among those stipulations was the identification of
several mounds and other sites Trustor believed to be Native American. The parties later filed
individual motions for summary judgment on the petition and counterclaims.
On November 29, 2016, the court granted Respondents’ and denied Appellants’ motions
for summary judgment. The court concluded, “[t]he trust document does not direct the Trustee …
to locate any additional Native American mounds or sacred sites … it was the intent of the Trustor
to direct the Trustee to obtain a land survey which would allow the transfer of a rectangular shaped
section of land containing Native American sites that she was aware of.” We affirm.
Point I
Appellants first argue the trial court erred in granting summary judgment on the declaratory
judgment action, because the court relied on extrinsic evidence to interpret a trust provision both
parties agree is unambiguous. In reviewing a declaratory judgment action decided by summary
judgment, our Supreme Court has stated:
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The propriety of a grant of summary judgment is an issue of law that this Court
reviews de novo … This Court reviews the record in the light most favorable to the
party against whom judgment was entered. Summary judgment is appropriate
when the moving party has demonstrated, on the basis of facts as to which there is
no genuine dispute, a right to judgment as a matter of law. Because this case
concerns declaratory judgment, the trial court’s decision will be affirmed unless
there is no substantial evidence to support it, it is against the weight of the evidence,
or it erroneously declares or applies the law.
American Federation of Teachers v. Ledbetter, 387 S.W.3d 360, 362-63 (Mo. banc 2012) (citations
omitted). We conclude the trial court did not erroneously rely on extrinsic evidence in determining
Trustor’s intent.
At issue is Article 3.1(b) of the trust document’s Fifth Amendment, which reads:
… the trustee shall have the real estate legally described above surveyed to except
out … all land that contains a Native American mound and/or other Native
American sacred sites. The excepted piece of land shall be surveyed so that the
boundaries can be legally described for said piece of land. The newly surveyed
land shall be in the shape of a rectangle so as to contain all Native American
Mounds and/or other Native American sacred sites.
Appellants contend the required survey must be an archaeological survey, by which they mean an
“archaeological exploration.” They conclude it cannot be, as the court determined, a topographic
land survey. In support, Appellants focus on the provision’s use of the word “all.” Because “all”
refers to all land containing Native American sites, Appellants argue, the word “survey” must refer
to an archaeological survey, as such a survey would unearth any and “all” undiscovered sites.
According to Appellants, Respondents’ conclusion that “all” only refers to sites known to Trustor
would require extrinsic evidence, because what Trustor knew lies beyond the four corners of the
trust document. We find no support for this interpretation.
“Unless the context of a will or trust indicates a different meaning of a word, the word will
be interpreted according to its plain, ordinary meaning.” Blue Ridge Bank and Trust Co. v. McFall,
207 S.W.3d 149, 157 (Mo. App. 2006). “Under traditional rules of construction, the word’s
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dictionary definition supplies its plain and ordinary meaning.” Hoffman v. Van Pak Corp., 16
S.W.3d 684, 688 (Mo. App. 2000) (citation omitted). Webster’s Third New International
Dictionary 2302 (Unabridged 1993) defines the verb “to survey” as “to determine and delineate
the form, extent, and position of (as a tract of land, a coast, or a harbor) by taking linear and angular
measurements and by applying the principles of geometry and trigonometry.” Thus, the
corresponding noun refers to “the process of surveying an area of land or water: the operation of
finding and delineating the contour, dimensions, and position of any part of the earth’s surface,
whether land or water.” Id.
Article 3.1(b)’s plain meaning and context do not support Appellants’ theory that “survey”
refers to “archaeological exploration.” Nothing in the definition of “survey” conveys exploration.
The determination and delineation of form conveyed by the verb accords with the trust document’s
goal of establishing legal boundaries. The taking of “linear and angular measurements” and
application of geometric principles accords with the instructions to create a rectangular tract. The
noun “survey” applies specifically to surface descriptions and not, as Appellants envision,
archaeological subsurface activity.1 Appellants’ interpretation of “survey” as an “exploration” is
thus at odds with the purely descriptive and delineative connotation conveyed by the word’s
definition.
Taken together with the meaning of “survey” and the general context of Article 3.1(b), the
word “all” can only refer to the sites with which Trustor was familiar. If “all” encompassed
unknown subsurface Native American sites, it would contradict the clear meaning of “survey”
1 While not all archaeological surveys involve subsurface activity, the proposed archaeological survey cited by
Appellants specifically refers to “subsurface testing (shovel tests) regardless of surface visibility.” See Appellants’
Exhibit A.
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described above. Further, Appellants’ interpretation could theoretically disenfranchise some of the
Trust’s intended beneficiaries. That is, if “all” were extended to include all unexcavated and
undiscovered sites, then it is possible the entire 300-acre tract could be conveyed to the Native
American Rights Fund. This outcome is clearly not the Trust’s intent, since the Rectangle must be
excepted out of the larger tract, and there are other beneficiaries. Thus, the trial court did not rely
on extrinsic evidence in concluding that “survey” refers to a land survey and “all” refers to the
Native American sites with which Trustor was familiar. These interpretations inhere in the plain
and ordinary meaning of the words, as those words are understood together and in context. Point
I is denied.
Point II
Appellants next argue the trial court erred, because its entry of summary judgment was
based on an extrinsic, unstipulated fact, in that the court unnecessarily read limitations into the
word “all.” Since Point I is dispositive of this argument, Point II is also denied.

Outcome: We therefore conclude the trial court did not err in granting Respondents’ motion for
summary judgment, because it based its interpretation of the unambiguous trust provision at issue
on the provision’s plain and ordinary meaning.

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