Boone v. Nelson's Estate, 9397

• Decision Date: 17 March 1978
• Docket Number: No. 9397,9397
• Citation: 264 N.W.2d 881
• Parties: Esther BOONE and Ruth Bergquist, Plaintiffs, Appellants and Cross-Appellees, v. ESTATE of Halley D. NELSON, Defendant, Appellee and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 881

264 N.W.2d 881

Esther BOONE and Ruth Bergquist, Plaintiffs, Appellants and Cross-Appellees, v. ESTATE of Halley D. NELSON, Defendant, Appellee and Cross-Appellant.

Civ. No. 9397.

Supreme Court of North Dakota.

March 17, 1978.

Daniel J. Chapman, Bismarck, for plaintiffs, appellants and cross-appellees.

Zuger & Bucklin, Bismarck, for defendant, appellee and cross-appellant; argued by Robert V. Bolinske, Bismarck.

PAULSON, Judge.

This is an appeal from a summary judgment of the Burleigh County District Court entered on June 3, 1977.

On August 9, 1976, the personal representative of the Estate of Halley D. Nelson (hereinafter the Estate) filed a petition in the Burleigh County Probate Court requesting the formal probate of Nelson's will dated December 12, 1975. Esther Boone, a sister of the decedent, filed objections to the probate of the will on the grounds of lack of testamentary intent or capacity, undue influence, fraud, duress, and mistake.

Based upon a review of the pleadings, depositions, and affidavits filed in the case, the probate court, on October 25, 1976, entered summary judgment on behalf of the Estate, dismissing with prejudice all of the objections to the probate of the will which were raised by Esther Boone. On November 1, 1976, the probate court filed an order admitting the December 12, 1975, will to formal probate.

On December 1, 1976, Esther Boone and Ruth Bergquist filed, in the county court, a notice of appeal to the Burleigh County District Court from the probate court's order admitting the will to formal probate.

On February 23, 1977, the Estate filed, in district court, a motion to dismiss the appeal on the ground that a timely appeal had not been taken from the summary judgment entered by the probate court. In its motion to dismiss, the Estate asserted that the summary judgment was res judicata with regard to all objections to the probate of the will determined therein which had been raised by Esther Boone. The district court denied the Estate's motion to dismiss the appeal by an open court order rendered on April 29, 1977.

On June 3, 1977, the district court entered a summary judgment on behalf of the Estate based upon the pleadings, depositions, and affidavits filed in the case, in which the district court affirmed the probate court's order admitting the December 12, 1975, will to formal probate.

On this appeal Esther Boone and Ruth Bergquist request this court to reverse the summary judgment of the district court and to remand for a trial on the objections raised to the probate of the will. The Estate has filed a cross-appeal from the district court's order denying the motion to dismiss the appeal from probate court. We will first discuss the issues raised on the cross-appeal.

The Estate now cross-appeals from the district court's order denying the Estate's motion to dismiss the appeal from the probate court. The Estate contends that the summary judgment entered by the probate court, in which all of the objections to probate of the will raised by Esther Boone were dismissed with prejudice, was appealable, pursuant to § 30-26-01 of the North Dakota Century Code. The Estate further contends that no appeal was taken within thirty days from the entry of the summary judgment as required by § 30-26-03, N.D.C.C., and that, as a consequence, the issues determined by the summary judgment became res judicata, barring Esther Boone and Ruth Bergquist from raising those issues in an appeal from the order of the probate court admitting the will to formal probate.

Pursuant to § 30-26-01, N.D.C.C., a person can appeal to the district court "a decree or any order affecting a substantial right made by a county court". To effect such an appeal, the appellant must file, in the county court, notice of the appeal within thirty days from and after the date of the order or decree pursuant to § 30-26-03, N.D.C.C. In the instant case, there was no appeal taken within thirty days from the summary judgment entered by the probate court. Assuming, arguendo, that the summary judgment was appealable, the failure to file a timely notice of appeal from the summary judgment as required by the statute, would render the issues decided therein res judicata and would bar subsequent re-litigation of those issues in an appeal from the order admitting the will to probate. See, In re Estate of Bjerke, 181 N.W.2d 126 (N.D.1970); In re Estate of Bjerke, 137 N.W.2d 225 (N.D.1965); Hubicki v. ACF Industries, Incorporated, 484 F.2d 519 (3d Cir. 1973).

In the case of In re Estate of Bjerke, 181 N.W.2d 126 (N.D.1970), this court held that a county court order construing a will under the provisions of the Declaratory Judgments Act, Chapter 32-23, N.D.C.C., was an appealable order. Justice Erickstad, writing for a unanimous court, stated, 181 N.W.2d at 127:

"As the order appealed from in the first Bjerke matter is an order entered under the provisions of our Declaratory Judgments Act, Chapter 32-23, N.D.C.C., and thus is not merely an interlocutory order entered in the process of probating a will or administering an estate, we hold that it is res judicata of the issue decided by it."

Unlike the order appealed from in Bjerke, supra, the summary judgment of the probate court in the instant case was entered in the process of probating Nelson's will. The probate court did not, in its summary judgment, admit the December 12, 1975, will to formal probate, nor did it determine that the will would be admitted to probate at a future date. The summary judgment merely dismissed the objections to probate of the will which had been raised as of that date by Esther Boone. The summary judgment did not foreclose the possibility that the December 12, 1975, will might never be admitted to probate on the basis, for example, of new objections raised by other parties. We conclude that the summary judgment entered by the probate court did not affect a substantial right and was not appealable under § 30-26-01, N.D.C.C.

Although the probate court labeled its dismissal of the objections to probate of the will as a "Summary Judgment", we believe the probate court's act was in the nature of an interlocutory order or a partial summary judgment which was not dispositive of all the issues before the court on the petition for formal probate of the will. A partial summary judgment or other form of decision, however designated, which adjudicates fewer than all of the claims or issues in a case is not a final appealable judgment unless the court, pursuant to Rule 54(b) of the North Dakota Rules of Civil Procedure, makes an express determination that there is no just reason for delay and an express direction for the entry of judgment. Rule 54(b), N.D.R.Civ.P.; see Melland Firestone, Inc. v. Streich, 226 N.W.2d 141 (N.D.1975); Mitzel v. Schatz, 167 N.W.2d 519 (N.D.1968); Berg v. Kremers, 154 N.W.2d 911 (N.D.1967); Perdue v. Knudson, 154 N.W.2d 908 (N.D.1967).

In the instant case, the probate court did not make an express determination, pursuant to Rule 54(b), N.D.R.Civ.P., that there was no just reason for delay. We conclude that the summary judgment of the probate court was not a final judgment and was not appealable. Consequently, the issues determined therein did not become res judicata, and those issues were properly raised by Esther Boone and Ruth Bergquist in their timely appeal from the November 1, 1976, order admitting the will to formal probate. The district court did not err when it denied the Estate's motion to dismiss the appeal from the probate court.

The Estate of the Decedent, Halley D. Nelson, offered the December 12, 1975, will for probate as the last will and testament of the decedent. That will bequeathed a legacy of $5,000 to the decedent's grandniece, Charlotte Wahl. The balance of the decedent's property, both real and personal, was devised and bequeathed to the decedent's stepson, Leonard E. Lundberg. Esther Boone objected to the probate of the December 12, 1975, will on the grounds of lack of testamentary intent or capacity, undue influence, fraud, duress, and mistake. The probate court granted summary judgment on behalf of the Estate, dismissing the objections with prejudice. The probate court then entered an order admitting the December 12, 1975, will to formal probate. Two of the decedent's sisters, Esther Boone and Ruth Bergquist, appealed to the district court from that order of the probate court. The Estate moved for summary judgment, requesting the district court to affirm the probate court's order admitting the will to formal probate. Based upon the pleadings, depositions, and affidavits filed in the case, the district court determined that there existed no genuine issue as to any material fact and that the proponents of the December 12, 1975, will were entitled, as a matter of law, to have the will admitted to formal probate. Accordingly, the motion for summary judgment was granted.

On this appeal, Esther Boone and Ruth Bergquist assert that the district court erred when it granted the Estate's motion for summary judgment. They request this court to reverse and remand for a trial on the objections raised to the probate of the will.

There is a presumption of sanity and testamentary capacity. In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973); Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968). When a will is contested on the ground that the testator did not have sufficient mental capacity to make a will, the contestant has the burden of establishing by competent evidence that at the time the will was made the testator did not have testamentary capacity. Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954). Pursuant to Rule 56(c) of the North Dakota Rules of Civil Procedure, a motion for summary judgment will be granted only if, after taking the view of the evidence most favorable to the party against whom the summary judgment is sought, it appears that there is no genuine issue as to any material fact and that the...