Estate of Stanton, Matter of

• Decision Date: 25 June 1991
• Docket Number: No. 900421,900421
• Citation: 472 N.W.2d 741
• Parties: In the Matter of the ESTATE OF Leo E. STANTON, Deceased. Agnes GASSMANN, Petitioner and Appellant, v. J. Francis STANTON, Personal Representative of the Estate of Leo E. Stanton, Respondent and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 741

472 N.W.2d 741

In the Matter of the ESTATE OF Leo E. STANTON, DeceasedAgnes GASSMANN, Petitioner and Appellant, v.J. Francis STANTON, Personal Representative of the Estate of Leo E. Stanton, Respondent and Appellee.

Civ. No. 900421.

Supreme Court of North Dakota.

June 25, 1991.

Alan C. Erickson, Bismarck, for petitioner and appellant.

Lawrence R. Klemin, Bismarck, for respondent and appellee.

VANDE WALLE, Justice.

Agnes Gassmann appealed from a judgment and an order granting summary judgment entered in Emmons County Court denying Agnes's objections to the probate of the will of Leo E. Stanton.We affirm.

Leo E. Stanton, a lifelong bachelor without issue, died January 20, 1989.Leo was survived by one sister, Agnes Gassmann, and four brothers, J. Francis, Miles, Victor and Lawrence Stanton.Leo's death was preceded by a lengthy period of infirmity following a stroke he suffered in 1977.In January 1979, a conservatorship was established for Leo which continued until his death a decade later.

On February 6, 1989, a will was admitted to probate and Francis was appointed as personal representative.The will, purportedly executed in 1974, named Francis, Miles, and Victor as beneficiaries, but did not name Agnes or Lawrence.The will was originally filed with the Emmons County Court by Francis in April 1979.

On June 22, 1989, Agnes filed objections to probate of the will.Agnes sought a jury trial as to all factual objections raised.Among her objections were allegations of forgery, fraud, undue influence, incompetency, absence of due execution, and revocation by the testator.Following discovery, the trial court granted a motion for summary judgment made by Francis, as personal representative.On appeal, Agnes contends that not only have the proponents of the will not met their burden of showing that there is no genuine issue of material fact, her objections to probate of the will are supported by sufficient evidence to preclude summary judgment.

Our law regarding summary judgment is well-settled.In Miller Enterprises v. Dog N' Cat Pet Centers, 447 N.W.2d 639(N.D.1989), this Court summarized the standards governing the grant of a summary judgment.

"Under Rule 56, N.D.R.Civ.P., a summary judgment should be granted only if it appears that there are no genuine issues of material fact or any conflicting inferences which may be drawn from those facts.SeeRule 56(c), N.D.R.Civ.P.;Production Credit Ass'n of Minot v. Klein, 385 N.W.2d 485(N.D.1986);Poyzer v. Amenia Seed and Grain Co., 381 N.W.2d 192(N.D.1986).The party moving for a summary judgment has the burden to demonstrate clearly that there is no genuine issue of material fact.Binstock v. Tschider, 374 N.W.2d 81(N.D.1985);Latendresse v. Latendresse, 294 N.W.2d 742(N.D.1980).In considering a motion for summary judgmentthe court may examine the pleadings, depositions, admissions, affidavits, interrogatories, and inferences to be drawn therefrom to determine whether summary judgment is appropriate.Everett Drill.Vent. v. Knutson Flying Serv., 338 N.W.2d 662(N.D.1983);First Nat. Bank of Hettinger v. Clark, 332 N.W.2d 264(N.D.1983).In doing so, the court must view the evidence in a light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the evidence.SeeStokka v. Cass Cty. Elec. Co-op., Inc., 373 N.W.2d 911(N.D.1985);Everett Drill. Vent. v. Knutson Flying Serv., supra."(Footnote omitted.)

Additionally, the court must consider the substantive evidentiary standard of proof when ruling on a motion for summary judgment.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);State Bank of Kenmare v. Lindberg, 471 N.W.2d 470(N.D.1991).The key consideration is "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not."Anderson v. Liberty Lobby, Inc., 477 U.S. at 254, 106 S.Ct. at 2513.We consider these precepts when we analyze the issues raised by Agnes.

Agnes appears to have advanced two distinct theories for this case.The first theory we glean is that the will offered to probate was not duly executed in 1974, its purported date, but was actually executed after Leo had his stroke in 1977, such execution accomplished by undue influence, forgery, or through fraudulent means.The second theory is that the will offered to probate may have been executed in 1974 but such will is not valid due to a lack of testamentary capacity or a subsequent revocation.We begin our analysis of the issues on appeal with the first theory.

As stated, the will was purportedly executed in 1974.The law in effect at the time of execution is controlling in regard to the formal validity of a will.Section 30.1-08-06, NDCC;Matter of Estate of Thomas, 290 N.W.2d 223(N.D.1980).In effect in 1974 was former section 56-03-02, NDCC, which provided:

"Every will, other than a holographic will and a nuncupative will, must be executed and attested as follows:

"1.It must be subscribed at the end thereof by the testator himself, or some person, in his presence, and by his direction, must subscribe his name thereto;

"2.It must be subscribed in the presence of the attesting witnesses, or be acknowledged by the testator to them to have been made by him or by his authority;

"3.The testator, at the time of subscribing or acknowledging the same, must declare to the attesting witnesses that the instrument is his will;

"4.There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will, at the testator's request, and in his presence;

"5.A witness to a written will must write with his name his place of residence; and a person who subscribes a testator's name by the testator's direction must write his own name as a witness to the will.A violation of this subsection does not affect the validity of the will."

Recitals in an attestation clause of a will are presumed to be true and can be used to establish due execution unless the presumption of truth is overcome by clear and convincing evidence.Matter of Estate of Papineau, 396 N.W.2d 735(N.D.1986).Within the 1974 will was the following attestation clause:

"The foregoing instrument, consisting of two pages, was subscribed, published and declared by LEO EDWARD STANTON, single, the testator therein named, as and for his Last Will and Testament, in our presence, and in the presence of each of us, and we, at the same time, at his request, in his presence and in the presence of each other, hereunto subscribe our names and residences as attesting witnesses at Braddock, Emmons County, North Dakota, this 17th day of December, 1974."

The attestation clause was signed by two witnesses, Edward and Marliss Peterson.Both Edward and Marliss submitted affidavits to the trial court stating that they were attesting witnesses to the will on file with the court and that the will was executed by Leo on December 17, 1974.The attestation clause and the testimony of the witnesses substantiate the proponent's claim that the will was duly executed in 1974 pursuant to section 56-03-02, NDCC.

Agnes's claims of undue influence, forgery, and fraud all presuppose that the will offered for probate was not duly executed in 1974 but, rather, was executed after Leo suffered his stroke in 1977.This presupposition ignores the presumption of due execution created by the attestation clause of the will offered for probate, a presumption which must be overcome by clear and convincing evidence for Agnes to prevail.Under the clear and convincing standard, "the evidence must be such that the trier of fact is reasonably satisfied with the facts the evidence tends to prove as to be led to a firm belief or conviction."Zundel v. Zundel, 278 N.W.2d 123(N.D.1979).Thus, viewing the evidence in a light most favorable to Agnes, we consider whether a trier of fact could reasonably be left with a firm belief or conviction that the will was not duly executed in 1974.

The deposition testimony of the Petersons indicates that their memories of the execution are less than complete.The lock box where the will was discovered in 1979 was allegedly entered by Francis in 1978.Agnes submitted an affidavit alleging that Leo stated on two occasions in 1977 that he did not have a will.Finally, Agnes's son John submitted an affidavit alleging that Victor informed him in 1980 that Miles made a will for Leo after Leo had suffered his stroke.

Affidavits opposing summary judgment must be made on personal knowledge and must set forth facts that would be admissible in evidence.Rule 56(e), NDRCivP.Statements constituting hearsay, of course, are generally not admissible unless they fall within an exception to the hearsay rules.Rule 802, NDREv.Rule 801(c), NDREv, defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."Leo's alleged statements about having no will are clearly hearsay.Agnes has not suggested an exception to the hearsay rule which would allow such statements to be admitted.¹Victor's statement, as alleged by John, is likewise hearsay but Agnes contends it is admissible under Rule 804(b)(3), because it is a statement against his pecuniary interest as a beneficiary under the will.²

Exceptions to the rule of nonadmissibility of hearsay under Rule 804 are conditioned upon the unavailability of the declarant.SeeRule 804, NDREv.There is no evidence in the record that Victor was currently unavailable to testify.Victor, in fact, provided testimony by deposition which was available to the trial court.³Rule 804(a)(5) provides:

"HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE

"(a) Definition of unavailability."Unavailability as a witness" includes...