Estate of Zimbleman, Matter of

• Decision Date: 31 October 1995
• Docket Number: No. 950056,950056
• Citation: 539 N.W.2d 67
• Parties: In the Matter of the ESTATE OF Anna Mary ZIMBLEMAN, also known as Anna Mary Zimbleman, Deceased. Emil ZIMBLEMAN, Plaintiff and Appellant, v. Donald LOH, Personal Representative of the Estate of Anna Mary Zimbelman, Darlene Frey, Marvin Zimbelman, Defendants and Appellees, and Anna Mae Lessar, Darvin Zimbelman, and Arvin Zimbelman, Defendants. Civ.
• Court: North Dakota Supreme Court

Page 67

539 N.W.2d 67

In the Matter of the ESTATE OF Anna Mary ZIMBLEMAN, also known as Anna Mary Zimbleman, Deceased Emil ZIMBLEMAN, Plaintiff and Appellant, v. Donald LOH, Personal Representative of the Estate of Anna Mary Zimbelman, Darlene Frey, Marvin Zimbelman Defendants and Appellees and Anna Mae Lessar, Darvin Zimbelman, and Arvin Zimbelman, Defendants.

Civ. No. 950056.

Supreme Court of North Dakota.

Oct. 31, 1995.

Timothy A. Priebe of Mackoff, Kellogg, Kirby & Kloster, Dickinson, for plaintiff and appellant.

Michael S. McIntee of McIntee Law Firm, Towner, for appellee Marvin Zimbelman.

James D. Gion of Gion Law Office, Regent, for appellee Darlene Frey.

David Crane, Mott, for appellee Donald Loh; submitted on brief.

LEVINE, Justice.

Emil Zimbelman, a son and devisee of Anna Mary Zimbelman, deceased, appeals from a county court order authorizing the personal representative of Anna's estate to sell certain real property at public sale. We affirm.

Anna executed her will on July 14, 1971. She died February 2, 1992, and her will was admitted to informal probate on April 16, 1992. The court appointed Emil co-personal representative of the estate.

The will provisions pertinent to the disposition of Anna's real property are:

"SECOND: I give, devise and bequeath my entire estate, whatsoever and wheresoever located, to my six children; namely, Emil Zimbelman, Anna Mae Lessar, Arvin Mike Zimbelman, Darvin William Zimbelman, Darlene Frey, and Marvin Dale Zimbelman, share and share alike.

. . . . .

"FOURTH: As it is my desire that the farm land which I own remain in the family, I hereby direct that should anyone of my children desire the land which I may own at my death, that such child may purchase such land for its appraised value upon the agreement of the remaining children, and that the sum received from such child for the sale of said land, be equally distributed amongst my children."

The "farm land" mentioned in paragraph FOURTH of Anna's will was two quarters of land in Grant County. One quarter, the Northwest Quarter (NW1/4), was primarily suited to growing crops. The other, the South Half of the South Half (S1/2S1/2) was primarily pasture land. An appraisal of the land's value was submitted to the estate on August 23, 1992. The appraiser deemed the NW1/4 to be worth $24,000 and the S1/2S1/2 to be worth $22,900.

In November 1992, Emil offered to buy all the estate's farm land at the appraised price. He sought the consent of the other heirs, but no sale was made. Acting in his capacity as co-personal representative, Emil then sought public bids on the land in April 1993. This action met with objections from some of the heirs. In May 1993, Emil took bids from family members for the land. Emil had the high bid on one quarter, and Darlene Frey had the high bid on the other. Neither, however, could obtain the consent of all their siblings to the respective sales.

Acting again in his capacity as co-personal representative, Emil sought court approval for the sale of one quarter of the land to himself. Emil's motion was opposed by Darlene and by Marvin Zimbelman. Both also requested that Emil be removed as co-personal representative. On July 15, 1993, the county court denied Emil's land sale motion and ordered Emil removed as co-personal representative.

The county court appointed Donald Loh successor personal representative on October 26, 1993. Acting in this capacity, Loh submitted a petition to the court, requesting a public sale of the estate's land, in February 1994. Emil and Anna Mae Lessar resisted the petition, and Loh withdrew it in March 1994. Loh next obtained a new appraisal of the estate land. The appraiser deemed the NW1/4 to be worth $27,904 and the S1/2S1/2 to be worth $23,306. On August 22, 1994, Loh submitted a petition for approval of his appraisement and inventory. On September 8, 1994, Marvin moved that the estate real estate be sold at public sale with the mineral rights reserved to the heirs.

The motions submitted by Marvin and Loh were heard in Grant County court on October 13, 1994. The court granted Marvin's motion, and ordered the personal representative to arrange a public sale of the estate land. Emil appealed.

The county court's order is appealable because Anna's estate was being administered under our informal probate procedures. See NDCC ch. 30.1-14. Informal probate proceedings are not supervised under the guidelines set forth in chapter 30.1-16, NDCC. Therefore, "each proceeding before the court is independent of any other proceeding involving the same estate." NDCC Sec. 30.1-12-07. Orders in an unsupervised probate are appealable without certification under Rule 54(b), NDRCivP, unless they determine "some, but not all, of one creditor's claims against an estate." Estate of Starcher, 447 N.W.2d 293, 296 (N.D.1989).

Emil argues that the county court erred when it interpreted Anna's will because it failed to give proper weight to her expressed intent that the farm land stay in the family. The county court first looked to paragraph SECOND of the will and found that Anna gave each of her children an equal share of her property. The court next looked to paragraph FOURTH of the will, and found that Anna designated a method by which any child could purchase the estate farm land, but made such purchase conditional upon "the agreement of the remaining children."

The court found that the condition of agreement contained in paragraph FOURTH had never been met. Because Anna's will specified no method for selling the farm land in lieu of an agreement, the court found it to be "incomplete." The court concluded that a public sale would be in the best interests of the estate, based on its findings that the children did not get along and that a private sale had been tried and failed.

We decide for ourselves the construction of an unambiguous will. Schatz v. Schatz, 419 N.W.2d 903 (N.D.1988). The testator's intent, as expressed in the will, controls the legal effect of the testator's dispositions. NDCC Sec. 30.1-09-03. When we construe a will, our purpose is to ascertain the testator's intent as it appears from a complete consideration of the will given the surrounding circumstances. Quandee v. Skene, 321 N.W.2d 91 (N.D.1982). If the language of the will is clear and unambiguous, we determine the testator's intent from the language of the will. Jordan v. Anderson, 421 N.W.2d 816 (N.D.1988).

In paragraph FOURTH of her will, Anna expressed a desire that the farm land stay in the family. She also, however, directed that any sale of the estate farm land to one child was subject to approval by the other children. Emil argues that, above all else, Anna wanted the farm land to stay in the family. He argues that the clause expressing this desire should control the interpretation of paragraph FOURTH. While it is clear from paragraph FOURTH that Anna wanted to give her children the opportunity to buy the farm land, it is equally clear that she wanted all the children to agree to such a sale. Because the children cannot agree, the clauses of paragraph FOURTH are at odds with each other.

Emil argues that paragraph FOURTH is therefore ambiguous because it can be given alternate interpretations depending on which clause is deemed controlling. Whether an ambiguity exists in a will is a question of law for this court to decide. Erickson v. Ward, 351 N.W.2d 445 (N.D.1984). A will provision is ambiguous if it can be given more than one interpretation or understood in more than one sense. Schatz, 419 N.W.2d at 906. In asking us to declare paragraph FOURTH of Anna's will ambiguous, Emil asks us to agree that one clause of the paragraph must control. He then invites us to look at extrinsic evidence to determine which clause should control. When we construe a will, however, we attempt to give effect to each word, clause, and provision. Quandee, 321 N.W.2d at 95. Because we can read paragraph FOURTH in a way that gives meaning to each clause, we decline Emil's invitation to find paragraph FOURTH ambiguous.

Instead, we agree with the county court that paragraph FOURTH is a devise subject to a condition. Anna created a mechanism by which her children could buy the farm land. She made the sale of the farm land to a child contingent on the agreement of the other children. This was a conditional devise. There are two types of conditions: conditions precedent and conditions subsequent. A condition precedent is a condition which must occur before an interest can vest; a condition subsequent defeats an interest that has already vested. Estate of Rozanski, 356 Pa.Super. 234, 514 A.2d 587 (1986); Megery v. Selymes, 14 Ohio App.2d 28, 235 N.E.2d 725 (1968); see also E.E.E., Inc. v. Hanson, 318 N.W.2d 101 (N.D.1982). Because Anna's will required all the children to agree to a sale before one child could exercise the right to buy, Anna's will imposed a condition precedent. If a condition precedent to a devise does not take place, the conditional devise becomes inoperative. Semmes v. Gary National Bank, 254 Ind. 682, 262 N.E.2d 529 (1970); Estate of Alpers, 251 Cal.App.2d 40, 58 Cal.Rptr. 841 (1967); see also Mattco, Inc. v. Mandan Radio Ass'n, Inc., 224 N.W.2d 822 (N.D.1974). Because none of Anna's children was able to obtain the agreement of the other children to the sale of the farm land, the devise of the right to buy the farm land failed. See Mollencamp v. Farr, 70 Kan. 786, 79 P. 646 (1905) [holding that clause of will allowing sons to purchase farm land failed because condition precedent to sale was not performed].

The county court did not err in finding that paragraph FOURTH of Anna's will contained a conditional devise, nor in finding that the devise failed. When a devise fails for a reason other than the death of the devisee, it becomes part of the residue. NDCC Sec. 30.1-09-06(1). The residue, or residuum, is that portion of the testator's property not otherwise disposed of by will. See...