Estate of Ketterling, Matter of

• Decision Date: 20 April 1994
• Docket Number: No. 930208,930208
• Parties: In the Matter of the ESTATE OF Arnold L. KETTERLING, Deceased. Lloyd KETTERLING, Petitioner and Appellant, v. Sandy GONZALES, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 158

515 N.W.2d 158

In the Matter of the ESTATE OF Arnold L. KETTERLING, Deceased.

Lloyd KETTERLING, Petitioner and Appellant, v. Sandy GONZALES, Respondent and Appellee.

Civ. No. 930208.

Supreme Court of North Dakota.

April 20, 1994.

Daniel J. Chapman (argued) of Chapman & Chapman, Bismarck, for petitioner and appellant.

Gregory C. Larson (argued) of Wheeler Wolf, Bismarck, for respondent and appellee.

MESCHKE, Justice.

Lloyd Ketterling appealed from an order denying reconsideration of an order dismissing his petition to set aside the informal probate of a will, to establish intestacy, and to appoint a new personal representative. Lloyd also appealed from the original order dismissing his petition and from an order denying his demand for a change of judge. We affirm.

Arnold L. Ketterling died May 6, 1991. He was single, and his surviving relatives were his mother, three brothers, including Lloyd, and two sisters. On May 9, 1991, one brother, Lawrence, was appointed special administrator of the estate to determine, among other things, whether Arnold left a will. Lawrence found no will, and his appointment was revoked. On June 17, 1991, William Chausee, the public administrator for Burleigh County, was appointed personal representative.

A few hours after Chausee was appointed, a will was found nominating Sandy Gonzales, who had lived with Arnold before his death, as the personal representative of the estate. In the will, dated December 23, 1989, Arnold gave the bulk of his estate to Gonzales. Gonzales applied for appointment as personal representative and for informal probate of the will. The trial court rescheduled the hearing on Gonzales's application for July 17, 1991, and ordered 14 days notice of the hearing given to interested persons.

On July 8, the attorney for the Ketterling family opposed Gonzales's application, alleging that the will "appeared under mysterious circumstances" and that the family was seeking to determine whether Arnold's signature on the will was genuine. The family's attorney asked to delay the July 17 hearing because of a conflict in his schedule. The trial court refused further delay.

Before the hearing, Gonzales filed affidavits of the attesting witnesses to the will, Dean Clairmont and Kenneth Hartlieb. Each swore he had been at Arnold's house on December 23, 1989, had witnessed Arnold sign the will, and then had signed as a witness. At the hearing, Hartlieb testified that he witnessed Arnold's signature on the will and gave details of his friendship with Arnold and the signing of the will. Gonzales testified about her relationship with Arnold. The Ketterling family and their attorney did not attend the hearing.

The trial court concluded that Gonzales had priority to act as personal representative and issued letters of administration to her. The court also ordered Gonzales to give known samples of Arnold's handwriting to the Ketterling family for use in expert analysis of the signature on the will.

Ten months later, the trial court approved substitution of a different attorney to represent Lloyd Ketterling. On September 28, 1992, Lloyd filed a "Petition to Set Aside Informal Probate of Will, for Formal Establishment of Intestacy, for Appointment of Personal Representative and Request for Jury Trial." Lloyd objected to probate of the will because he "verily believes that the purported Will is not the Last Will and Testament of the decedent." Lloyd sought appointment as personal representative of the estate.

Lloyd's petition was not served on Gonzales or other interested persons. On December 8, 1992, the trial court asked the clerk to call Lloyd's attorney to suggest that he serve the petition on interested persons. Lloyd's attorney served Gonzales with notice of filing the petition on January 14, 1993. Gonzales served and filed a resistance to Lloyd's petition on February 4, 1993.

On February 25, 1993, the trial court, on its own initiative, dismissed Lloyd's petition. The court reasoned:

In this case, the petitioner merely states he "verily believes that the purported Will is not the Last Will and Testament of the decedent." The statement is conclusory and no basis for the petitioner's contention that the will is not the last will of the decedent is provided.

Section 30.1-15-03 provides for notice requirements when a formal testacy proceeding is commenced. The petitioner has not complied with those requirements.

Because the petitioner has not complied with statutory requirements in this case, the petition is DISMISSED.

Lloyd later filed a demand for change of judge with the presiding judge of the judicial district. The presiding judge denied the demand for change of judge, reasoning that the judge had "acted in all matters throughout these proceedings." Lloyd also asked the trial court to reconsider its order. Lloyd argued that the trial court erred because no notice of filing the petition was required by statute and no one moved for dismissal. Following a hearing, the trial court denied reconsideration and affirmed its dismissal of Lloyd's petition.

Lloyd appealed from the order dismissing his petition, the order denying reconsideration of that order, and the order denying his demand for change of judge.

I

Although neither party questioned appealability, we review appealability on our own initiative. City of Fargo v. Casper, 512 N.W.2d 668, 669 (N.D.1994). This is an unsupervised administration of an estate. The orders dismissed all of Lloyd's claims, and therefore no NDRCivP 54(b) certification was required. See Matter of Estate of Burshiem, 483 N.W.2d 175, 178 n. 4 (N.D.1992); Jarmin v. Shriners Hospitals, 450 N.W.2d 750, 751 n. 3 (N.D.1990); Matter of Estate of Starcher, 447 N.W.2d 293, 296 (N.D.1989). Because this record does not show that Lloyd was served with notice of entry of any of the orders, his appeals are timely under NDRAppP 4(a). Matter of Estate of Erickson, 368 N.W.2d 525, 528 (N.D.1985); Matter of Bo, 365 N.W.2d 847, 850 (N.D.1985). Even if Lloyd had actual knowledge of entry of the original order dismissing his petition, see Lang v. Bank of North Dakota, 377 N.W.2d 575, 577-578 (N.D.1985), we believe he can obtain review through his timely appeal from the order denying reconsideration of the original dismissal without a hearing.

Under NDCC 28-27-02(7), an appeal of an order made without notice or hearing is precluded until the judge has a chance to reconsider that decision in an adversary proceeding. Matter of Estate of Kjorvestad, 395 N.W.2d 162, 163 (N.D.1986); Beck v. Smith, 296 N.W.2d 886, 888 (N.D.1980). Here, although the trial court dismissed the petition without notice or hearing, Lloyd moved for reconsideration, and an adversary proceeding was held. Under NDCC 28-27-02(7), the trial court's order denying Lloyd's motion to reconsider the original order is therefore appealable.

Finally, while an order denying a demand for change of judge is interlocutory and not appealable in itself, we will review an intermediate order on appeal from a final judgment. NDRAppP 35(a); Adolph Rub Trust v. Rub, 473 N.W.2d 442, 444 (N.D.1991). We conclude that we have jurisdiction of Lloyd's appeal.

II

Whether Lloyd's challenge to Arnold's will is procedurally viable depends to some extent on whether the July 17, 1991 proceeding was a formal or an informal testacy proceeding. In general, the Uniform Probate Code, NDCC Title 30.1, authorizes both formal and informal proceedings. The effect of an order in a formal proceeding differs significantly from an order in an informal proceeding.

"Informal proceedings" are "those conducted by the court for probate of a will or appointment of a personal representative without notice to interested persons." NDCC 30.1-01-06(20) [UPC 1-201]. Informal proceedings are thus limited to two kinds: admission of wills to probate and appointment of personal representatives. Matter of Estate of Hoffas, 422 N.W.2d 391, 395 n. 4 (N.D.1988). These informal acts do not involve adjudication. I Uniform Probate Code Practice Manual, at p. 21 (2d ed. 1977). The effect of an informal probate is that it "is conclusive as to all persons until superseded by an order in a formal testacy proceeding." NDCC 30.1-14-02 [UPC 3-302]. Thus, informal proceedings for determining testacy and appointing personal representatives generally do not have notice requirements, are basically ex parte in nature, and are handled administratively, not adversarially. "Upon settlement and distribution of the estate under this type of proceeding, the determinations made have no res judicata effect but rather are protected by various statutes of limitation." Matter of Estates of Cahoon, 102 Idaho 542, 546, 633 P.2d 607, 611 (1981). See, for example, NDCC 30.1-12-08(3) [UPC 3-108]: "A proceeding to contest an informally probated will and to secure appointment of the person with legal priority for appointment in the event the contest is successful, may be commenced within the later of twelve months from the informal probate or three years from the decedent's death."

On the other hand, "[f]ormal proceedings" are "those conducted before a judge with notice to interested persons." NDCC 30.1-01-06(16) [UPC 1-201]. "A formal testacy proceeding is litigation to determine whether a decedent left a valid will." NDCC 30.1-15-01(1) [UPC 3-401] (part). See also Matter of Estate of Polda, 349 N.W.2d 11, 16 (N.D.1984). Litigation to determine whether a decedent left a valid will can encompass determinations "that the decedent left a will, that he left no will, that he left several instruments, any one or more of which might constitute a valid will, or that he died testate as to a portion of his estate and intestate as to the balance." I Uniform Probate Code Practice Manual, at p. 242. A contested hearing on whether the decedent left a valid will, after notice and before a judge, is ordinarily a formal testacy proceeding.

A formal testacy proceeding is begun by a...