Estate of Hill, Matter of

Decision Date09 November 1992
Docket NumberNo. 920075,920075
PartiesIn the Matter of the ESTATE OF Kenneth G. HILL, Deceased. Appeal of Nancy PIJAN, Claimant and Appellant. Civ.
CourtNorth Dakota Supreme Court

John T. Schneider of Schneider, Schneider & Schneider, Fargo, for claimant and appellant.

Jonathan T. Garaas (argued), of Garaas Law Firm, Fargo, for appellee Kathleen Hill.

Edward F. Klinger of Gunhus, Grinnell, Klinger, Swenson & Guy, Moorhead, Minn., attorney for appellee First Trust Co. of North Dakota, personal representative.

Arthur Warren Stokes, Wahpeton, for appellees Duane M. Hill, Sharon Fleischauer, and Brian J. Hill.

VANDE WALLE, Justice.

Nancy Pijan submitted a claim to the estate of Kenneth G. Hill for repayment of a series of alleged loans she made to Hill before his death. After the claim was disallowed by the personal representative, First Trust Company, North Dakota, N.A., Pijan petitioned the county court for the allowance of her claim. The county court denied her claim and she has appealed the denial. We affirm in part and reverse in part.

In 1969, Pijan was hired as Hill's personal and corporate bookkeeper. Pijan considered herself Hill's office manager and had access to all of his financial records. As Hill's corporate bookkeeper, Pijan kept the books of his various business entities including Polar Incorporated, Hill's corporation which owned Polar Package Place, a Fargo off-sale liquor establishment. As Hill's personal bookkeeper, Pijan would, among other things, pay all his bills, record all his deposits, conduct all his banking, balance his checkbook, and negotiate certificates of deposit. Hill would routinely check Pijan's work for accuracy.

The relationship between Hill and Pijan developed into a close and personal one, culminating in a love affair. Without contradiction, Pijan testified she was a friend, business associate, personal confidant, bookkeeper, creditor, agent, and lover of Hill.

In 1972, Frank Baer began working at Polar Package Place and became its floor manager. In 1978, Baer as floor manager and Pijan as office manager approached Hill about purchasing Polar Inc., the holding corporation of Polar Package Place. At that time, Polar Inc. was owned by both Hill and his four children. The corporation redeemed their shares in an agreement between Hill and his children dated May 13, 1978. On May 19, 1978, with a down payment of $221.96, Baer and Pijan purchased all 49 shares of Polar Inc. for a total consideration of $500,000.

Of the $500,000 total consideration for the 49 shares of Polar Inc., $272,221.95 (49 shares multiplied by $5,555.55 per share) were financed through a promissory note to Hill. The $272,221.95 was to be divided equally between Baer and Pijan as "joint and several" debtors. The remaining $225,000 was borrowed from First National Bank in Fargo in the name of the corporation, Polar Incorporated. This loan through First National also allowed Pijan and Baer an inventory loan of $128,000 and an individual loan of $22,500 should she and Baer so choose. The loan agreement limited Pijan and Baer's salaries to a specified amount and required the furnishing of an annual financial statement of the business to both Hill and the bank.

When Pijan and Baer bought Polar Inc., Hill employed another bookkeeper, but Pijan remained in charge of the corporate offices and continued to be Hill's personal bookkeeper.

In 1983, Pijan sold her entire interest (24 1/2 shares) in Polar Inc. back to Polar Inc. (and thus to Baer) for $300,000.05. Baer and Pijan determined that $153,640.26 remained to be paid by them on their 1978 promissory note to Hill for the initial purchase of Polar Inc. The corporation agreed to pay Pijan's share of $76,820.13 (half of $153,640.26) to Hill. The remaining $223,179.87 ($300,000.05 minus $76,820.13) would be paid to Pijan in the form of a $100,000 promissory note and $123,179.87 to be paid to Pijan at closing. Baer thereafter signed an "Assumption of Liabilities" which released and held free Pijan from any obligations under the 1978 initial purchase agreement.

The personal relationship between Hill and Pijan grew steadfast. On April 28, 1984, Hill asked Pijan to marry--this being noted in Hill's personal diary in the April 28, 1984 entry. Pijan refused Hill's proposal, apparently because she had planned to move to Bismarck and thought the long distance between the two would make continuing a relationship difficult. One month later, Pijan moved to Bismarck to take over the management of Hill's Bismarck liquor establishment, Polar Package Place. Pijan was an officer and owned 10,000 shares of Dakota Gold Inc., the holding corporation of the Bismarck Polar Package Place. Other shareholders of Dakota Gold Inc. were Hill and his four children. Pijan remained in Bismarck as manager of Polar Package Place until Hill's death.

Despite the physical distance between them, Hill and Pijan remained close and intimate--so close in fact that Hill would take his financial records to Bismarck or Pijan would travel to Hill's farm, not only to continue their intimate relationship, but also to prepare and reconcile Hill's financial records. When Hill would travel to Bismarck, he stayed at Pijan's house, and when Pijan would travel to Hill's farm, she stayed at Hill's house.

In December 1984, Pijan wrote a check to Hill for $30,000. In Hill's personal ledger this money was marked as "payable," showing that the money was due and payable to Pijan--indicative of a loan. Submitted into evidence was Hill's personal diary which bore the notation "Borrowed 30M from Nancy to Deposit" on the December 31, 1984 entry. The $30,000 was paid back to Pijan in August of 1985 with no interest. This transaction is not a part of this suit. Pijan presumably submitted it for the purpose of showing prior informal loan dealings between her and Hill.

On September 15, 1987, Pijan wrote Hill a check for $100,000. A notation on Hill's checking account deposit slip in that amount made that same day has the notation "N A Pijan" in Pijan's own handwriting, the "N A Pijan" being Pijan's given name initials and her surname. This money was used by Hill to buy the "Mikkelson property," a farm Hill was buying. Hill eventually purchased this land and it is now a part of the estate. There is no writing to evidence this transaction as a loan.

On January 2, 1988, Pijan wrote Hill a check for $45,000. A notation on Hill's checking account deposit slip in that amount made on that same day has the notation "N A Pijan" in Pijan's own handwriting. This money was used to cover overdrafts in Hill's account and to cover an Internal Revenue Service amount due based on Hill's 1987 estimate. In Hill's personal ledger, Pijan wrote "payable" next to the notation of her check to Hill, showing that the money was due and payable to her by Hill--indicative of a loan. There is no other writing to evidence this transaction as a loan.

On January 18, 1988, Pijan wrote Hill a check for $15,000. A notation on Hill's checking account deposit slip in that amount made on the same day has the notation "N A Pijan" in Pijan's own handwriting. This money was also used to cover overdrafts in Hill's account and to cover an Internal Revenue Service amount due based on Hill's 1987 estimate. In Hill's personal ledger, Pijan wrote "payable" next to the notation of her check to Hill, showing that the money was due and payable to her by Hill--indicative of a loan. There is no other writing to evidence this transaction as a loan.

On or about November 2, 1988, Pijan wrote Hill a check for $25,000. On November 2, 1988, Hill deposited $50,000 into his checking account. The deposit slip for this transaction bears two notations in Hill's handwriting: a $25,000 check deposited from Dakota Gold, Inc., and a $25,000 check deposited from "N A P," indicating Pijan's given and surname initials. The money from Pijan was to be used for the payment of various bills and payments to be paid on the farm land. In Hill's personal ledger Pijan wrote "payable" next to the notation of both the checks from Pijan and Dakota Gold, showing that the monies were due and payable to Dakota Gold and Pijan--indicative of a loan. The money from Dakota Gold was subsequently repaid to Dakota Gold. There is no other writing to evidence this transaction as a loan by Pijan.

Also, on or about November 2, 1988, Pijan purchased with her own money draperies and blinds for Hill's farm in the amount of $2709.58 from Sears.

In early 1989, Hill wrote out an informal statement of his assets and liabilities. This statement was in Hill's handwriting and Pijan was not present when the statement was drawn up. Under the "liabilities" heading is an entry of "Nancy P. ?150,000--". This entry indicates that Hill knew he owed Pijan around $150,000, but he was not sure of the amount. This again is indicative of a loan agreement or agreements between the two.

Hill died from a stroke on June 30, 1989. Thereafter, Pijan submitted a claim against Hill's estate for repayment of (1) the $100,000 September 15, 1987 check, (2) the $45,000 January 2, 1988 check, (3) the $15,000 January 18, 1988 check, (4) the $25,000 November 2, 1988 check, and (5) the $2,709.58 Sears bill. All claims were denied by both the personal representative and the subsequent county court order.

I. Express Contract

In this case, it is alleged that Pijan and Hill entered into four oral loan contracts. Hill's estate claims that these were not loans but gifts. Oral contracts present particular problems of proof. First and foremost, Pijan had the burden of proving the claim of an oral contract by a preponderance of the evidence. Midland Oil & Royalty Co. v. Schuler, 126 N.W.2d 149 (N.D.1964). The evidence to support the claim must have produced the stronger impression and be more convincing when weighed against the evidence in opposition thereto. Christensen v. Iowa State Highway Comm'n, 252 Iowa 1351, 110 N.W.2d 573 (...

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