Berzel's Estate, In re
| Decision Date | 17 February 1960 |
| Docket Number | No. 7859,7859 |
| Parties | In the Matter of ESTATE of George BERZEL, Deceased. Mary FISH, Appellant in District Court; Respondent, v. Mary BERZEL, as Executrix of Last Will and Testament of George Berzel, Deceased; Mary Berzel, Appellees in District Court; Appellants, and St. Joseph's Church of Dickinson, North Dakota, and Katholisches Schwestern Haus, Appellees in District Court. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where Series E savings bonds are payable to two persons as co-owners and one of them dies while the bonds remain the property of the co-owners, the survivor becomes the sole and absolute owner of the bonds and no interest therein vests in the estate of the deceased co-owner.
2. Section 6-0366, NDRC 1943, which provides that where a deposit in a banking association is in the names of two persons payable to either or payable to either or the survivor the deposit or any part thereof may be paid to either whether the other is living or not, is for the protection of the paying bank and is not determinative of the ownership of the deposit.
3. The names in which bank deposits are entered on the records of the bank as the names of those authorized by contract between the bank and the depositor to withdraw funds are not conclusive as to the ownership of the account in the absence of a contract or express provision for ownership or survivorship.
4. The lone fact that an account in a bank is authorized to be carried on the bank's records in the name of the depositor 'and/or' the name of another is evidence simply of the depositor's intent that the deposit may be drawn upon by either of the persons named and is not sufficient to establish a gift inter vivos of the deposit or any interest therein.
5. Where an appeal is taken from the county court to the district court from an order allowing a final report and account of an executrix and from a final decree of distribution, intermediate orders are not before the district court for a review unless the notice of appeal specifies the intermediate orders if any upon which the appellant desires a review. Section 30-2608, NDRC 1943.
6. Under the provisions of Section 30-2004, 1957 Supplement to NDRC 1943 an executor shall receive as compensation for services performed in caring for, managing and settling an estate five per cent of the first one thousand dollars, three per cent of the next five thousand dollars, two per cent of the estate in excess of six thousand dollars up to fifty thousand dollars, and for all of the estate in excess of fifty thousand dollars such compensation as the court shall deem just and reasonable with a limitation of two per cent. In addition to the foregoing the court may allow an additional amount for any extraordinary services rendered which it shall deem just and reasonable with the limitation that the total amount allowed for both ordinary and extraordinary services shall not be more than double the compensation prescribed for ordinary services.
7. Administrators and executors may employ attorneys to advise and assist them in the conduct of probate matters. Such an attorney is entitled to collect a reasonable fee for his services the amount of which depends upon the extent and nature of the services rendered, the amount of the estate, the time required in rendering the services and the ability, skill and experience of the attorney.
8. The schedule of minimum fees recommended by the North Dakota Bar Association with reference to services rendered in probate matters is not binding on the courts but may be considered in determining the reasonableness of the fee charged.
9. An attorney for the executrix is not entitled to collect from funds of the estate commissions for selling individual interests of legatees and devisees during the course of probate of property that they have been bequeathed in the will.
10. Where a will contains a general residuary clause sufficient to pass bequeathed property where the bequest has been refused and the will does not otherwise provide for the contingency of refusal, a refused or renounced bequest becomes a part of the residue of the estate and passes under the residuary clause.
Reichert & Reichert, Dickinson, N. D., for appellants.
Mackoff, Kellogg, Muggli & Kirby, Dickinson, N. D., for respondents.
The last will and testament of George Berzel dated June 2, 1956 was admitted to probate in the County Court of Stark County on July 30, 1956. The petitioner in that proceeding was Mary Berzel who was named in the will as executrix. The respondents were Mary Fish, St. Joseph Church of Dickinson, N. D., and Katholisches Schwestern Haus. The probate proceeded to a point where an order was entered allowing the final report and account of the executrix and a decree of distribution rendered and entered, both dated March 7, 1958. Mary Fish appealed from both the order and the decree to the District Court of Stark County. The matter was there tried de novo to the court without a jury. The district court rendered judgment on June 9, 1959 vacating and setting aside the order and decree and directing the county court to require a further final account and report not inconsistent with the judgment and the rendition of a final decree of distribution in conformity with the decision of the district court and with a judgment of the district court which had been entered in an action in that court brought by Mary Fish as plaintiff therein and Mary Berzel personally and as executrix of the last will and testament of George Berzel, deceased, as the defendant, for the specific performance of an adoption contract. The judgment rendered in the action for specific performance was appealed to this court and affirmed. See Fish v. Berzel, N.D., 101 N.W.2d 548.
Mary Berzel personally and as executrix of the last will and testament of George Berzel, deceased, has appealed to this court from the judgment rendered on the appeal from county court to the district court and has demanded a trial de novo herein.
The last will and testament of George Berzel, deceased, made the following specific bequests: (1) $150 to the Mass Foundation of St. Joseph's Church of Dickinson; (2) $100 to St. Joseph's Church of Dickinson; (3) $1,000 to Katholisches Schwestern Haus, Engels Gasse, Speyer am Rhein, Germany, for the care of the decedent's sister, Elizabeth Breitschafter, for the rest of her natural life; (4) personal effects of the deceased, household furniture, and any automobile owned by the deceased at the time of his death to his wife, Mary Berzel. The residue of the estate was bequeathed as follows:
'a. To my wife, Mary Berzel, two-thirds ( 2/3) of all the rest of my property, real, personal and mixed, to have and to hold, forever.
b. To my daughter (though not legally adopted by me, I have always and do consider Mary Fish as my daughter and wish her to share as a legally adopted daughter) Mary Fish, one-third ( 1/3) of all of the rest of my property, real, personal and mixed, to have and to hold, Forever.'
Mary Berzel was designated as executrix without bond and given a power of sale to sell the property of the estate at public or private sale.
Mary Berzel challenges determinations of the district court with respect to seven items of the final account and report as approved in the county court which were disallowed or modified by the district court. The facts and contentions of the parties with respect to these items will be set forth and considered separately.
The first item consists of 24 U.S. Savings Bonds Series E having a total value of $9,742.20. A one-half interest in these bonds in the sum of $4,871.10 was listed in the amended inventory for estate tax purposes. Neither the bonds nor any interest therein was shown in the final report as an asset of the estate or included in the order allowing the final report and account or in the decree of distribution. The bonds were payable to George Berzel or Mary Berzel. Thus they were co-owners of the bonds.
Section 47-0206, NDRC 1943 provides that:
'A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.'
It is the contention of Mary Fish that because the bonds on their face do not state them to be held in joint tenancy nor is any provision for survivorship contained therein that the interest of the payees is that of a tenant in common and that no right of survivorship exists with the result that upon the death of George Berzel it must be presumed that Mary Berzel owns a half interest and that the other half interest vested in the estate, became an asset thereof and must be distributed under the terms of the will.
Mary Berzel contends that the right of survivorship is supplied by the Treasury regulations under which Series E bonds are issued and that the purchase of the bonds by George Berzel must be construed to have been made pursuant to the regulations which it is argued provide the express declaration of survivorship.
One-half of the value of the bonds appears to have been included in the inventory in compliance with Section 57-3706, NDRC 1943 which provides that the gross estate of a decedent for estate tax purposes shall include the value of interests in property held as joint tenants and that the value of the interest of the decedent in such property shall be determined by dividing the value of the property by the number of joint tenants. The mere listing of an interest in the bonds in the inventory does not have the effect of making that interest an asset of the estate.
This court has considered two cases involving the rights of co-owners or their estates in Series E savings bonds. Littlejoin v. County Judge, Pembina County, 79 N.D. 550, 58 N.W.2d 278, 283, 39 A.L.R.2d 690, involved a gift inter vivos by...
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