Bo, Matter of, s. 10665

• Decision Date: 01 April 1985
• Docket Number: 10734,Nos. 10665,s. 10665
• Citation: 365 N.W.2d 847
• Parties: In the Matter of Alf J. BO. In the Matter of the Administration by Ramsey National Bank & Trust Company and Lawrence Lange, Co-Trustees of the Trust Created by Alf J. Bo. In the Matter of the Conservatorship of Alf J. Bo, an Incapacitated Person. Civ.
• Court: North Dakota Supreme Court

Page 847

365 N.W.2d 847

In the Matter of Alf J. BO.

In the Matter of the Administration by Ramsey National Bank

& Trust Company and Lawrence Lange, Co-Trustees of

the Trust Created by Alf J. Bo.

In the Matter of the Conservatorship of Alf J. Bo, an

Incapacitated Person.

Civ. Nos. 10665, 10734.

Supreme Court of North Dakota.

April 1, 1985.

As Amended April 18, 1985.

Gary R. Thune [argued], of McConn, Fisher & Thune, Ltd., Grand Forks, for appellant First Nat. Bank in Grand Forks, conservator of Alf J. Bo.

Melvin Christianson [argued], of Foughty, Christianson & White Eagle, Devils Lake, for appellees, co-trustees Ramsey Nat. Bank and Lawrence J. Lange.

J. Thomas Traynor [argued], of Traynor, Rutten & Traynor, Devils Lake, for appellee, Lake Region Community College.

Allen Hoberg [argued], Asst. Atty. Gen., Bismarck, for appellee Attorney General.

Lewis C. Jorgenson, Ramsey County State's Atty., Devils Lake, for appellee and cross-appellant Ramsey County.

GIERKE, Justice.

First National Bank in Grand Forks, Conservator of Alf J. Bo, appeals from an amended judgment of the District Court of Ramsey County and from an order of the Ramsey County Court. The appeals were consolidated by stipulation of the parties. The district court refused to give effect to two attempted revocations of the trust set up by Alf J. Bo [Bo]: (1) The notice of revocation executed by Bo on December 11, 1981; and (2) the notice of revocation executed by the conservator at Bo's request on August 26, 1983. The order of the Ramsey County Court from which the conservator appeals amended the conservator's powers over the trust to exclude the authority to revoke Bo's trust. We conclude that the county court did not err in limiting the conservator's authority over Bo's trust. Further, we affirm the district court's amended judgment which denied revocation of Bo's trust.

Appellees in this case include: (1) the Co-Trustees of the trust created by Alf J. Bo, i.e., Ramsey National Bank & Trust Company, and Lawrence J. Lange; (2) Lake Region Community College; (3) the Ramsey County State's Attorney; and (4) the Attorney General of the State of North Dakota. Appellee and cross-appellant, the Ramsey County State's Attorney, asserts on cross appeal that the district court erred in failing to grant a continuance to the State's Attorney for the October 31, 1983, hearing held on the petition for trust revocation.

At age 65, Alf J. Bo, a Ramsey County farmer, married Dolly Lamoreaux [Dolly], then age 60, the owner of a ranching operation in Benson County. They lived on Bo's farm near Devils Lake. Dolly died in November of 1979.

On April 18, 1979, Bo executed a trust agreement in which he disposed of half of his trust estate to the Devils Lake Area Foundation and half to Lake Region Junior College (or Lake Region Community College). Bo named as co-trustees Ramsey National Bank & Trust Company of Devils Lake and Lawrence J. Lange. He also reserved the right to revoke the trust.

In December of 1979, Bo executed a will in which he devised and bequeathed the residue of his estate to Lake Region Junior College.

On September 24, 1980, Elaine "Jackie" Larsen [Elaine], one of Dolly's nieces, came to North Dakota from Washington state to visit Bo. A short time later, on September 30, Elaine petitioned the Ramsey County Court to appoint her the conservator of Bo, asserting that Bo's advanced age of 82 years rendered him unable to effectively manage his property and affairs. Her appointment was secured by order of the Ramsey County Court on that same date. On October 4, 1980, Bo executed another will devising his sole estate to Elaine and then left for the State of Washington with her.

Thereafter, proceedings were instituted in the Ramsey County Court for the removal of Elaine as conservator. A hearing was held on December 3, 1980, at which time Roger Stoe and Elaine were appointed co-conservators, and Roger was also appointed temporary guardian for Bo. In the meantime, on October 7, 1980, the trustees had petitioned the District Court of Ramsey County for supervision of the trust and the court accepted supervision on November 5, 1980.

In December of 1980, Elaine secured appointment as Bo's guardian in the State of Washington. In early 1981, Elaine resigned as Bo's conservator in Ramsey County, North Dakota, and First National Bank in Grand Forks was appointed conservator on February 18, 1981.

The conservator [First National Bank] petitioned the county court for additional authority over Bo's trust. On July 8, 1981, the court issued an order granting additional powers to the conservator, which order reads in pertinent part:

"The Conservator, First National Bank in Grand Forks, be and it hereby is granted as additional powers to those conferred upon it by Sections 30.1-29-24 and 30.1-29-25, all those powers over the estate and affairs of Alf Bo which Alf Bo could exercise if present and not under disability, except the power to make a will. This enlargement of powers of the Conservator is granted pursuant to the provisions of Section 30.1-29-26 (5-426) and subsection 3 of Section 30.1-29-08 (5-408) of the North Dakota Century Code." [Emphasis added.]

On December 10, 1981, one year after Elaine was appointed Bo's guardian, a Washington court discharged her as guardian, relying on an affidavit prepared by Washington Dr. Richard V. Lance which stated that Bo was no longer incapable of understanding the nature and extent of his business affairs. The next day, Bo executed a document which revoked the trust which he had set up in 1979. Later, Bo, age 85, formally adopted Elaine, age 53. Approximately two years later, the conservator executed a notice of revocation of the trust, pursuant to a written request from Bo dated July 15, 1983.

The conservator petitioned the district court for revocation of the trust. The court initially granted the petition for revocation but stayed its order pending a determination of the conservator's authority in county court.

The county court, when petitioned by the trustees and Lake Region Community College, determined that the additional powers granted to the conservator on July 8, 1981, did not include the power to revoke the existing trust. Further, the county court determined that Bo remained an incapacitated person. Thus, the district court amended its judgment to reflect the county court's determination. The district court, in its amended judgment, refused to give effect to either the notice of revocation executed by Bo on December 11, 1981, or the notice of revocation executed by the conservator on August 26, 1983. This appeal followed.

Initially, we must discuss Lake Region's assertion that this court is without jurisdiction to hear the appeal from the county court because it was not filed within the appropriate time.

Lake Region contends that an appeal from a conservatorship decision in county court shall be filed sixty days from the date of the order appealed from, pursuant to Rule 4(a) of the North Dakota Rules of Appellate Procedure and Sec. 30.1-02-06.1 [U.P.C. 1-308], N.D.C.C. The conservator in the instant case executed his notice of appeal on June 25, 1984, which is more than sixty days from the order of the county court dated March 28, 1984.

Rule 4(a), however, provides that the notice of appeal in a civil case shall be filed "within sixty days of the date of the service of notice of entry of the judgment or order appealed from" [emphasis added]. No notice of entry of the order has been served in this case. Therefore, the time for appeal technically has not yet commenced to run.

The conservator has filed a timely notice of appeal with respect to the revocation of the trust matter pursuant to Sec. 59-04-25, N.D.C.C. This appeal, along with the appeal from the county court, relates to a central issue, i.e., whether or not the trust has been properly revoked. The parties, Lake Region included, stipulated to a consolidation of the appeals because the central issue is inextricably entwined within the conservatorship proceeding and the trust proceeding. Where two actions are consolidated by stipulation of the parties, the court's power and jurisdiction is the same as if only one action had been brought. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 813 (1942); 1 Am.Jur.2d Actions Sec. 161. Thus, Lake Region's contention that this court lacks jurisdiction to hear the appeal from the county court is without merit.

The issue for this court on appeal is the effectiveness of the two attempted revocations, one executed by Bo himself in 1981 and another executed by his conservator in 1983.

I. REVOCATION BY BO ON DECEMBER 11, 1981

In order to determine the effectiveness of Bo's revocation, we must examine the county court's assessment of Bo's competency. A trial court's findings concerning competency are questions of fact which will not be overturned on appeal unless they are clearly erroneous. Rule 52(a), North Dakota Rules of Civil Procedure; Mitchell v. Preusse, 358 N.W.2d 511, 513 (N.D.1984); Nygaard v. Robinson, 341 N.W.2d 349, 354 (N.D.1983).

The conservator argues that the county court erroneously presumed Bo was incompetent because he was under a conservatorship. As the conservator points out, the existence of a conservatorship, in and of itself, has no effect on the capacity of that person. Section 30.1-29-08(2)(e) [U.P.C. 5-408], of the North Dakota Century Code, so provides:

"2. The court has the following powers which may be exercised directly or through a conservator in respect to the estate and affairs of protected persons:

* * *

"e. An order made pursuant to this section determining that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person."

The appointment of a conservator or other protective order is made for a person who is under disability and, as such, is unable to maintain his property. Section...