Erickson v. Ward

• Decision Date: 18 July 1984
• Docket Number: No. 10611,10611
• Parties: Lucille ERICKSON and Della Wallman, Plaintiffs, Appellants, and Cross-Appellees, and Edward Ward, Involuntary Plaintiff and Appellee, v. Ernest WARD, individually and as Personal Representative of Marie Ward Estate, Defendant, Appellee, and Cross-Appellant. Civ.
• Court: North Dakota Supreme Court

Page 445

351 N.W.2d 445

Lucille ERICKSON and Della Wallman, Plaintiffs, Appellants and Cross-Appellees and Edward Ward, Involuntary Plaintiff and Appellee, v. Ernest WARD, individually and as Personal Representative of Marie Ward Estate, Defendant, Appellee, and Cross-Appellant.

Civ. No. 10611.

Supreme Court of North Dakota.

July 18, 1984.

T.L. Secrest, Hettinger, for plaintiffs, appellants, and cross-appellees Lucille Erickson and Della Wallman.

Lawrence Dopson (argued), of Pearce, Anderson & Durick, Bismarck, for involuntary plaintiff and appellee Edward Ward.

Gary R. Wolberg (argued), of Fleck, Mather, Strutz & Mayer, Bismarck, for defendant appellee, and cross-appellant Ernest Ward.

VANDE WALLE, Justice.

The plaintiffs, Lucille Erickson and Della Wallman, have filed an appeal from the judgment of the District Court of Bowman County, dated December 5, 1983, quieting title to real property located in Bowman County in Edward and Ernest Ward and decreeing that Lucille and Della have no right, interest, or title in the property. We affirm.

On appeal, we are asked to construe the following provision of Joyce Ward's will:

"I give, devise and bequeath to my wife, Marie Ward, all of the property of which I might die seized and possessed, be the same real, personal or mixed, for her own use, as long as she may live and remain unmarried, with full authority and power to mortgage, sell, exchange or in any manner dispose of the same, as she may see fit, and after the death or remarriage of my wife, Marie Ward, any balance then remaining in my said estate to be equally divided among my children or the children of any deceased child by representation."

After Joyce's death Marie did not remarry, and she died during March 1982. The trial court determined that prior to Marie's death she conveyed the property she had received from Joyce under the will to her sons, Ernest and Edward, by various warranty deeds.

On appeal, Lucille and Della, Joyce and Marie's daughters, assert that although Marie attempted to give the property to Edward and Ernest by warranty deeds she did not have the authority to do so because, under Joyce's will, Marie merely received a life estate with a power of disposal that did not include the right to dispose of the property without adequate consideration.

The court's purpose in construing a will is to ascertain the intention of the testator. E.g., Hitz v. Estate of Hitz, 319 N.W.2d 137 (N.D.1982). Where the language of a will is clear and unambiguous the...