Estate of Peterson, Matter of
| Decision Date | 01 April 1997 |
| Docket Number | No. 960241,960241 |
| Citation | 561 N.W.2d 618 |
| Parties | In the Matter of the ESTATE OF Ruben J. PETERSON, Deceased. Minnie BERGER, Personal Representative of the Estate of Ruben J. Peterson, Deceased, Clay Berger, Terry Bertelsen and Monte Bertelsen, Petitioners and Appellees, v. Dale A. PETERSON, Ronald B. Peterson, Virgil O. Peterson, Merle L. Peterson, Jeanine C. Kirschbaum, and Lila J. Close, Respondents and Appellants. Civil |
| Court | North Dakota Supreme Court |
Kathleen Key Imes, of Imes & Imes, P.C., Williston, for petitioners and appellees Estate of Ruben J. Peterson and Minnie Berger, Personal Representative, and Richard A. McKennett, of Winkjer McKennett Stenehjem Reierson & Forsberg, Williston, for petitioners and appellees Terry Bertelsen and Monte Bertelsen.
Fred E. Whisenand, of Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Williston, for respondents and appellants.
¶1 We are asked to decide if the district court correctly ordered unequal distribution of probate-estate assets to give effect to the testator's intent, to decide the reasonableness of personal representative and attorney fees, and to decide if the personal representative breached her fiduciary duty. We affirm, concluding the distribution was proper, the fees were reasonable, and fiduciary duty was not breached.
¶2 Ruben Peterson died on July 4, 1995. In his will, he nominated his sister, Minnie Berger, as personal representative. She was appointed on August 1, 1995. He also named nine beneficiaries: Minnie Berger and her two sons, Terry Bertelsen and Monte Bertelsen; and his deceased brother's six children, Dale A. Peterson, Ronald B. Peterson, Virgil O. Peterson, Merle L. Peterson, Jeanine C. Kirschbaum, and Lila J. Close ("Petersons").
¶3 The beneficiaries disagreed about distribution of the estate and, on January 19, 1996, stipulated to supervised administration. An order for supervised administration was entered on January 29, 1996.
¶4 Articles II and IV of the will are in issue, and provide:
¶5 When Ruben Peterson died he owned a number of savings accounts and certificates payable on death (P.O.D.). The P.O.D. accounts contained unequal amounts of money, and all nine beneficiaries were named on one or more of the P.O.D. accounts.
¶6 On March 28, 1996, the district court ordered the P.O.D. accounts distributed to the named owners, and ordered the personal representative "to make appropriate unequal distribution of the remainder of the estate to make all of the heirs equal beneficiaries, to achieve the decedent's intent of equal distribution as stated in Article IV of his Will."
¶7 On July 2, 1996, the district court issued its final order approving the final accounting and distribution. In the order, the district court approved $7,000 in fees for the personal representative, and $10,173.98 in attorney fees incurred by the personal representative. The district court also found the personal representative's failure to place a $100,000 certificate of deposit in an interest-bearing account was not a breach of her fiduciary duty. On July 19, 1996, the district court issued an additional order allowing attorney fees incurred by the Petersons to be paid from the estate, and inviting Terry Bertelsen, Monte Bertelsen, and Clay Berger to submit a bill to the estate for attorney fees they incurred.
¶8 The Petersons appealed from the July 2, 1996, order approving the final accounting and distribution, and the July 19, 1996, order on attorney fees.
¶9 The district court had jurisdiction under N.D. Const. Art. VI, § 8, and N.D.C.C. § 30.1-02-02. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. Art. VI, § 6, and N.D.C.C. § 28-27-01.
¶10 The Petersons contend the district court erred in finding Ruben Peterson's testamentary intent was for all nine beneficiaries to share equally in the distribution of the estate and P.O.D. accounts, and in ordering unequal distribution of the estate residue to achieve equal distribution considering the P.O.D. accounts.
¶11 The district court concluded the funds on deposit in the P.O.D. accounts could not be divided equally as provided in Article IV of Ruben Peterson's will. In Matter of Estate of Leier, 524 N.W.2d 106, 110 (N.D.1994), we stated: "Under NDCC 30.1-31-09(2)(b), on the death of the sole party, sums on deposit in an account with a P.O.D. designation belong to the surviving beneficiary or beneficiaries." 1 A P.O.D. designation may not be altered by will. Leier at 109 (citing N.D.C.C. § 30.1-31-10). 2 The district court correctly concluded the P.O.D. designations must be honored, and correctly ordered distribution according to the P.O.D. designations.
¶12 The district court found Ruben Peterson's intent was for all nine beneficiaries to share equally in the estate, including the money in the P.O.D. accounts. If the language of a will is clear and unambiguous, we determine for ourselves the testator's intent from the language of the will. E.g., Matter of Estate of Zimbleman, 539 N.W.2d 67, 70-71 (N.D.1995). Whether a will is ambiguous is a question of law for the court to decide. Zimbleman.
¶13 The decedent's intent can be determined from the will, because the language is clear and unambiguous. In Article II, he expressed his intent for his estate to be divided equally among all nine beneficiaries. In Article IV, he expressed his intent for his certificates of deposit or savings certificates to be divided equally among all nine named beneficiaries, notwithstanding whether they were named on the certificates. Article IV clearly demonstrates Ruben Peterson mistakenly considered the accounts as part of his probate estate and thought he could alter the P.O.D. designations by his will. We agree with the district court. The clear and overriding intent expressed in the will is for all nine beneficiaries to share equally in the estate, including the money in the P.O.D. accounts.
¶14 The primary objective in construing a will is to ascertain and effectuate the intent of the testator if the intent is not contrary to law. E.g., Bartz v. Heringer, 322 N.W.2d 243, 244 (N.D.1982). "The testator's intent, as expressed in the will, controls the legal effect of the testator's dispositions." Zimbleman at 70-71 (citing N.D.C.C. § 30.1-09-03). "The language used in a will, however crudely or inartfully drawn, should be construed, if reasonably possible to accomplish, and not defeat, the testator's intent." Matter of Estate of Klein, 434 N.W.2d 560, 562 (N.D.1989). Ruben Peterson's intent should not be thwarted by his apparent mistaken assumption he could alter the effect of the P.O.D. designations by his will.
¶15 Non-probate property may be considered for the purpose of accomplishing a testator's intent to treat beneficiaries equally. Matter of Estate of Johnson, 501 N.W.2d 342 (N.D.1993). In Johnson, to accomplish the testator's intent, the value of property gifted before the testator's death was considered in determining the beneficiaries' shares under an equalization clause. To give effect to Ruben Peterson's intent of equal distribution, the district court ordered unequal distribution of the estate, so each of the nine beneficiaries would, in fact, share equally when the amounts distributed from the P.O.D. accounts were considered in conjunction with the shares from the estate.
¶16 We conclude, by ordering distribution according to the P.O.D. designations and appropriate unequal distribution of the estate, the district court properly gave effect to Ruben Peterson's intent while at the same time abiding by the law governing P.O.D. accounts.
¶17 The Petersons contend the district court erred by approving payment of personal representative fees in the amount of $7,000 from the estate.
¶18 "A personal representative is entitled to reasonable compensation for services rendered." Matter of Estate of Flaherty, 484 N.W.2d 515, 520 (N.D.1992) (citing N.D.C.C. § 30.1-18-19). 3 "The review of fees paid or taken by a personal representative is left to the sound discretion of the trial court." Flaherty at 521. We will not overturn the trial court's decision absent a showing of abuse of discretion, and the court's underlying findings of fact will be upheld unless clearly erroneous. Flaherty.
¶19 The Petersons allege various time entries were double-billed and overstated. As admitted by the Petersons' attorney during oral argument, however, the specific billing errors were not raised before the district court. We will not address issues or contentions raised for the first time on appeal, nor, ordinarily, will the court remand a case to give a party an opportunity to redo what could have been done in the first place. E.g., Wingerter v. North Dakota Dept. of Transp., 530 N.W.2d 362, 365 (N.D.1995). The purpose of an appeal is to review the actions of the trial court, not to grant the appellant the opportunity to develop and expound on new strategies or theories. E.g., In Interest of ...
To continue reading
Request your trial
-
Piper Rudnick LLP v. Hartz
... ... is entitled to pay counsel fees incurred in that defense from the corpus of the estate. We shall answer this question affirmatively and reverse ... I ... and balance of the Orphans' Court is that we're in total agreement that any person in any matter may hire any attorney. Check and balance has always been in the Orphans' Court since time ... , 87 P.3d at 94; In re Estate of Hass, 643 N.W.2d 713, 720 (N.D.2002) ; In re Estate of Peterson, 561 N.W.2d 618, 624 (N.D.1997) ; see also In re Estate of Lewis, 442 So.2d 290, 292 (1983) ... ...
-
Mahoney v. Mahoney
...for the first time on appeal. See Lang v. Bank of North Dakota, 423 N.W.2d 501, 502 (N.D.1988); NDRCivP 46. In Matter of Estate of Peterson, 1997 ND 48, p 19, 561 N.W.2d 618, we explained We will not address issues or contentions raised for the first time on appeal, nor, ordinarily, will th......
-
Roise v. Kurtz
... ... denied, --- U.S. ----, 118 S.Ct. 306, 139 L.Ed.2d 236 (1997); In re Estate of Peterson, 1997 ND 48, p 19, 561 N.W.2d 618; Hendrickson, 553 N.W.2d at 219. The rule limiting ... Among the most important of these classes of issues are those going to the subject-matter jurisdiction of the court below, or of the reviewing court. In addition, an issue may be treated ... ...
-
IN RE ESTATE OF FISK
...The review of fees paid or taken by a personal representative is left to the sound discretion of the district court. See, e.g., Estate of Peterson, 1997 ND 48, ¶ 18, 561 N.W.2d 618. We will not overturn the district court's decision on reasonable compensation absent a showing of an abuse of......