IN THE COURT OF APPEALS OF IOWA

No. 23-0847

Filed April 10, 2024

ERIN JOHNSON, TRACI CHRISTENSON, CARRIE SLAGLE and RICHARD 

DOUD,

Plaintiffs-Appellees,

and 

WESLEY J. HILLSHEIM,

Intervenor,

vs.

MICHAEL DENNIS, prior trustee of the DENNIS FAMILY TRUST,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover, Judge.

A trustee appeals the district court ruling ordering distribution of trust funds. 

AFFIRMED.

David L. Marner Jr., Ann M.K. McCrea, Dana A. Judas, and Daniel G. 

Clouse of Nazette Marner Nathanson Knoll LLP, Cedar Rapids, for appellant.

Chad D. Brakhahn of Simmons Perrine Moyer Bergman, PLC, Cedar 

Rapids, for appellees.

Considered by Schumacher, P.J., and Ahlers and Langholz, JJ.
2

SCHUMACHER, Presiding Judge.

Michael Dennis appeals the district court ruling on the distribution of assets 

of the Dennis Family Trust.1 He argues that Mardelle Doud had a vested 

remainder, and the court erred in its interpretation of the trust when the court

granted her share of the trust estate to her issue.

2 Michael asserts the trust 

required that the assets be distributed to Mardelle’s estate rather than to her 

children.

3

I. Background Facts and Prior Proceedings

In 1992, husband and wife, Charles and Josephine Dennis executed the 

Dennis Family Trust. They were both the settlors and trustees. The trust provided 

for Charles and Josephine during their lives and for distribution to their children 

after their deaths. Charles and Josephine had four children, Michael, Greg, 

George, and Mardelle. Charles died in 2006, and Josephine died in 2013.

Michael and Mardelle became trustees after their mother’s death. The trust 

dictated that: 

Upon the death of the surviving Trustor, unless stated 

otherwise, the Trustee shall apply and distribute the net income and 

principal of each of the shares of the resulting Trust Estate . . . set 

aside for the benefit of the Trustor’s named beneficiaries as follows:

Michael E. Dennis 1⁄4

George L. Dennis 1⁄4

Greg A. Dennis 1⁄4

Mardelle M. Doud 1⁄4

1 On appeal, Michael does not challenge the district court’s removal of himself as 

trustee and the appointment of a new trustee.

2 Mardelle’s children—Erin Johnson, Traci Christenson, and Carrie Slagle—and 

Mardelle’s surviving spouse, Richard Doud, are the plaintiffs.

3 Because the trust involves parents and siblings, many of whom share a surname, 

we refer to them by their first names in this opinion.
3

At the time of Josephine’s death, the trustees attempted to sell the house 

owned by the trust, but they could not come to an agreement on a sale price. No 

distribution occurred.

Mardelle passed away in 2019. At the time of her death, the assets

remaining in the trust were the house, its contents, and money in a trust bank 

account. After Mardelle’s death, Michael became the sole trustee. Mardelle’s 

daughter had been living in the home and agreed to buy it. After the sale of the 

house closed, Michael made the first distribution of the trust to himself, George, 

and Greg, but not to Mardelle’s issue.

4

To justify the lack of distribution to Mardelle’s issue, Michael alleges that 

before Mardelle’s death, she wrote herself checks out of the trust account to cover 

“hot checks” from gambling debt. He also asserts that he provided money directly 

to Mardelle to cover gambling debt. Michael contends the funds should be 

distributed to Mardelle’s estate once opened because her interest was vested 

when Josephine died. Michael also has an interest in her debt to him being paid 

out of the estate.

5 Mardelle’s children and husband filed this action seeking the 

distribution of Mardelle’s share, contending they were entitled to it under the trust, 

citing to section 4.4(d):

If any beneficiary for whom a share of the trust estate has been set 

aside should fail to survive the above distribution, then the Trustee 

shall distribute one hundred percent (100%) of the balance of such 

deceased beneficiary’s share of the Trust Estate, in equal shares, to 

the issue of the deceased beneficiary . . . 

4 At the time of distribution, George was also deceased, and his share was 

distributed to his family.

5 Mardelle’s children stated that they did not intend to pay Michael.
4

The district court agreed and ruled that the plaintiffs were entitled to Mardelle’s 

share of the trust. The court also removed Michael as a trustee, citing a conflict of 

interest. Michael moved to reconsider, which the court denied. Michael appeals. 

II. Standard of Review

We review this action in equity de novo. In re Est. of Hurt, 681 N.W.2d 591, 

593 (Iowa 2004).

III. Distribution of the Trust Assets

Michael argues Mardelle had a vested remainder interest in one-fourth of 

the trust estate at the time of her death and the district court erred in interpreting 

the trust. He asserts the trust makes clear the distribution should have gone to 

Mardelle’s estate, rather than to the plaintiffs.

6

The parties argue over whether Mardelle had a vested interest, but the 

interpretation of the trust language ultimately determines the outcome.

7 When 

examining a trust’s language, our focus is on the intent of the testator. In re 

Steinberg Fam. Living Tr., 894 N.W.2d 463, 471 (Iowa 2017). But we determine 

that intent by examining the language of the trust itself and “the question is not 

what the testator meant to say, but rather what is the meaning of what the testator 

did say.” In re Est. of Rogers, 473 N.W.2d 36, 39 (Iowa 1991). In this examination 

6 At the time of hearing, there was no estate open for Mardelle. 

7 Our focus is on determining the outcome dictated by the trust language. 

“Whether a testamentary remainder is vested or contingent must be determined 

by the intent of the testator as expressed by the language of the will . . . .” In re 

Will of Uchtorff, 693 N.W.2d 790, 794 (Iowa 2005) (citation omitted). “A remainder 

may be vested even when enjoyment is postponed until the happening of some 

future condition; it is contingent only if the remainder interest is ‘dependent on 

some dubious circumstance, through which it may be defeated.’” Id. at 793–94

(quoting Taylor v. Taylor, 92 N.W. 71, 71 (Iowa 1902)). 
5

we utilize the “usual and ordinary meaning” of the language in the trust. Steinberg 

Fam. Living Tr., 894 N.W.2d at 471. Additionally, “[w]hen determining a testator’s 

intent, we consider the document as a whole and give each part meaning and 

effect when possible.” Id.

The distribution of the trust here is governed by section 4.4 of the Trust. It 

reads in part:

(a) Upon the death of the surviving Trustor, unless stated 

otherwise, the Trustee shall apply and distribute the net income and 

principal of each of the shares of the resulting Trust Estate . . . set 

aside for the benefit of the Trustor’s named beneficiaries as follows:

Michael E. Dennis 1⁄4

George L. Dennis 1⁄4

Greg A. Dennis 1⁄4

Mardelle M. Doud 1⁄4

(b) If any beneficiary, to whom the Trustee is directed in a 

preceding provision hereof, to distribute any share of the trust 

principal, is under the age of 21 years when the distribution is made, 

Trustee shall, continue to hold such beneficiary share as a separate 

trust until such time when beneficiary reaches age 21. The trustee 

in their absolute discretion, may distribute to a beneficiary under age 

21, their respective share, for matters including college or vocational 

training.

(c) When each beneficiary reaches the age of 21 years, the 

Trustee shall distribute to each beneficiary One Hundred Percent 

(100%) of the then balance of the principal of his or her share of the 

Trust Estate. If any beneficiary under this trust other than a surviving 

spouse, dies within 90 days after the first Trustor’s death, all of the 

provisions in this trust for the benefit of such persons shall lapse, 

except for the principle of representation to a deceased beneficiary’s 

children (Section 4.5), and this trust shall be construed as if such 

person had predeceased the first Trustor; therefore, no distribution 

shall be made for at least 90 days after the first Trustor's death.

(d) If any beneficiary for whom a share of the trust estate has 

been set aside should fail to survive the above distribution, then the 

Trustee shall distribute one hundred percent (100%) of the balance 

of such deceased beneficiary’s share of the Trust Estate, in equal 

shares, to the issue of the deceased beneficiary, to be held in trust 

for such beneficiary’s issue until each such beneficiary reaches the 

age of twenty-one (21) years. If there should be no such surviving 

issue, then all of the balance of the deceased child’s share of the 

Trust Estate shall be added to the other shares set aside for the 
6

benefit of the Trustor’s other living beneficiaries, as hereinabove 

provided, including proportionately both the distributed and the 

undistributed portions of each such share, to be held, administered 

and distributed as part of other shares. If all beneficiaries fail to 

survive the above distribution, then their shares of the Trust Estate 

shall be divided equally among the beneficiaries surviving issue to 

be held in trust until each of the issue reaches twenty-one years of 

age.

In examining this language, the district court ruled that subsection (d) 

required that the distribution be made to Mardelle’s issue as Mardelle had failed to 

survive the distribution. We agree. The language of section 4.4 is clear. See id.

This section of the trust states that if a beneficiary fails to survive the distribution, 

their share is to be distributed to their issue. See id. There is no ambiguity in this 

language. See id. And this language shows Mardelle’s interest was contingent on

surviving the distribution. See Uchtorff, 693 N.W.2d at 793–94.

Michael makes several additional arguments, but these arguments are 

defeated by the plain language of the trust. First, Michael asserts the context of 

section 4.4(d) indicates it must only apply when a beneficiary is under the age of 

twenty-one, and he points to the proceeding subsections 4.4(b) and (c) which 

contemplate when and how a distribution should occur if a beneficiary is under the 

age of twenty-one at the time of distribution. In short, he argues that section 4.4(d) 

applies when a beneficiary under the age of twenty-one predeceases their own 

distribution that would have occurred when they turned twenty-one. He asserts 

the language indicating shares “set aside” in section 4.4(d) refers only to shares 

for beneficiaries under the age of twenty-one created in section 4.4(b). This 

argument unnecessarily narrows section 4.4(d), and it is not supported by the text 

of the trust or the context of section 4.4. 
7

The “set aside” language Michael points to appears in only two locations in 

section 4.4—section 4.4(a) and (d). It does not appear in section 4.4(b). Knowing 

that “[w]ords occurring more than once in a will are assumed to be used always in 

the same sense,” the “set aside” language cannot refer only to shares for 

beneficiaries under twenty-one. See Roskrow v. Jewell, 135 N.W. 3, 4 (Iowa 

1912). Section 4.4(a) states that “shares of the resulting Trust Estate . . . set aside

for the benefit of the Trustor’s named beneficiaries as follows . . . Mardelle Doud 

1⁄4.” (Emphasis added). “Set aside” in the context of shares of this trust estate is 

not limited only to shares for beneficiaries under twenty-one. Instead, it is a 

general term used to describe all allocated shares of the trust estate. 

Further, although section 4.4(d) comes after section 4.4(b), both are 

subsections of section 4.4, which is titled “Trust Income and Principal Distribution” 

and encompasses all distributions. The context of section 4.4(d) does not suggest 

it applies only to a prior subsection of section 4.4 rather than to section 4.4 as a 

whole. 

Michael’s second argument concerns the relationship between sections 4.4 

and 4.5 of the trust. Section 4.5 states: “Should a beneficiary predecease the 

surviving Trustor’s death such share of that beneficiary’s interest shall then be 

distributed to the surviving issue of such deceased beneficiary on the principle of 

representation.” Michael argues the district court’s reading of section 4.4 renders

section 4.5 meaningless because a distribution only happens after the surviving 

trustor’s death, and any beneficiary that predeceases a trustor also predeceases 

the distribution. In other words, Michael argues for an application of the canon of 

surplusage. But “we resort to technical rules or canons of construction only when 
8

the will is ambiguous or conflicting or the testator's intent is uncertain.” Rogers, 

473 N.W.2d at 39. We have already determined there is no ambiguity in this 

language.

And sections 4.5 and 4.4(d) apply to different situations. Section 4.5 applies 

when a beneficiary predeceases the surviving trustor, and section 4.4(d) applies 

when a beneficiary predeceases the distribution. Although some overlap exists in 

those two concepts, they are different. As was true here, the distribution and the 

death of the surviving trustor can happen many years apart. Additionally, “[t]he 

rule against superfluous language is not ‘the be-all and end-all.’” U.S. Bank, Nat’l 

Ass’n v. Bittner, 986 N.W.2d 840, 850 (Iowa 2023) (citation omitted). It “does not 

require courts to read a contract in a way that contains no surplusage,” Brazil v. 

Auto-Owners Ins., 3 F.4th 1040, 1043–44 (8th Cir. 2021), and “[i]t is but one rule 

of construction” U.S. Bank, Nat’l Ass’n, 986 N.W.2d at 850. The existence of 

section 4.5 does not change the plain meaning of section 4.4.

The language of the trust requires that if a beneficiary predeceases the 

distribution of the trust estate, that beneficiary’s share is to go to their issue.

Because a beneficiary’s interest was contingent on surviving the distribution, 

Mardelle’s share should be distributed to her issue. See Uchtorff, 693 N.W.2d at 

793–94. The district court properly interpreted the trust language. Accordingly, 

we affirm. 

AFFIRMED.