Guardianship of Frank, In re
| Decision Date | 23 September 1965 |
| Docket Number | No. 8147,8147 |
| Citation | 137 N.W.2d 218 |
| Parties | In the Matter of the GUARDIANSHIP OF the Property of Eleanor FRANK. Bertha M. SCHMIDT, Odelia Tishmack, Angeline Mahrer, and Ralph J. Frank, Petitioners and Appellants, v. Leo R. FRANK, also known as L. Richard Frank, Ronald E. Frank, Eleanor Frank, Rose Mary Frank, and Reverend Hugo Backes, as special guardian of Eleanor Frank, Respondents. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The county court has power to appoint a guardian of the person or estate, or both, where the jurisdictional facts exist and the person for whom a guardian is sought is of unsound mind, or from any cause mentally or otherwise incompetent to manage his own property.
2. Under the provisions of Section 30-26-23, N.D.C.C., upon a general appeal from a decree or order of the county court, all issues must be tried and determined anew in the district court and not upon the record certified from the county court.
3. Where a case has been tried to the district court without a jury, under the provisions of Section 28-27-32, N.D.C.C., an appeal to the supreme court imposes upon the appellate court the duty to review the entire district court record and exercise its independent judgment thereon. Nevertheless, the determination of the trial court upon the facts must be given appreciable weight, especially where it is based upon the testimony of witnesses who appeared in person before the trial court.
4. For reasons stated in the opinion, it is held that the district court was correct in determining that Eleanor Frank was competent and in reversing an order of the county court appointing a guardian.
5. The granting or denying of a motion for the production of documents and things for inspection, copying, or photographing, under Rule 34, N.D.R.Civ.P., is a matter largely within the discretion of the trial court.
6. A party who seeks reversal of a judgment upon the grounds that the trial court erred in denying a motion for production of documents and things for inspection, copying, or photographing, under Rule 34, N.D.R.Civ.P., has the burden of showing that his substantial rights have been prejudiced by the ruling of which he complains and in the absence of such showing the judgment will not be reversed.
Vogel, Ulmer & Eair, Mandan, for petitioners and appellants.
Maurice G. LaGrave, Mandan, for respondents.
MORRIS, Commissioner.
On March 30, 1963, the County Court of Morton County, Honorable W. J. Austin acting by designation and request of Honorable Carl Borge, County Judge of Morton County, found the respondent in that Court, Eleanor Frank, to be incompetent and that it was necessary to appoint a general guardian of her property. An appeal was taken to the District Court of Morton County. Upon a trial before the Court without a jury the District Court found that Eleanor Frank was competent and capable of managing her own affairs, and reversed the decision of the County Court. The original petitioners in the County Court now appeal to the Supreme Court and demand a trial de novo.
Eleanor Frank, at the time of the trial in County Court, was sixty-seven years of age and was a widow whose husband had died intestate on May 20, 1962. She was the administratrix of that estate. She and her deceased husband were the parents of seven adult children, Bertha M. Schmidt, Odelia Tishmack, Angeline Mahrer, and Ralph J. Frank, who are petitioners; and Leo R. Frank, Ronald E. Frank, and Rose Mary Frank, who, together with their mother and her special guardian, are respondents.
John Frank, the husband and father, died seized of about seventeen quarter-sections of land, of which the widow inherited one-third and the children two-twenty-firsts each. This land was divided into three farms, one of which was farmed by each of the three sons under an agreement with the father. After his death, and during the summer of 1962, there were a number of family meetings at the home of the widow in Flasher, North Dakota, at which there was considerable discussion concerning the acquisition by the sons of the land they had been farming by purchase from the other heirs. No agreement was reached and some ill will developed between the participants, particularly the children. On December 8, 1962, Eleanor Frank was taken to a hospital suffering from what was termed a 'slight stroke.' She was released about nine days later and went to the home of her daughter, Rose Frank, in Bismarck. On December 19 some discussion was had between Eleanor Frank, her daughter, Rose Mary, and her sons Leo and Ronald, regarding her sale to the two sons of her one-third interest in the estate land. On December 21 she executed deeds to these two sons for her one-third interest in all of the land, based on a value of $20.00 per acre, which was the value fixed by the appraisers of the estate. The purchase price of that portion of the land sold to Leo was evidenced by a note signed by him and his wife for $12,090.60, payable ten years after date, with interest at the rate of four percent per annum, payable annually. Ronald and his wife gave a similar note for the purchase price of the land sold to them in the sum of $7,607.40, due twelve years after date. At the same time Rose Mary Frank sold her interest in the estate to her brothers Leo and Ronald on the basis of a value of $30.00 per acre, payable on the same terms as the land sold by her mother.
Much of the argument made to support the charge of incompetency is based on the fact that Eleanor Frank sold her interest in the land on the basis of a $20.00 per acre valuation, while Rose Mary sold her interest to the same purchasers on the basis of a valuation of $30.00 per acre. It is also argued that Mrs. Frank had very little business experience, that she had but a meager knowledge of the English language and preferred to speak German, and that she could read very little English and wrote very little. It is obvious from reading the transcript that this facet of the case interested the trial court, who asked a number of pertinent questions, particularly of Eleanor Frank, who had not testified at the hearing in County Court.
In reply to questions by the trial court she testified that if her husband was going to buy a piece of land he would talk it over with her and she would look at the property, and he told her how much an acre and everything. He would also talk to her about renting out land. He would talk to her about buying farm machinery, and she would tell him that if he needed it, buy it. He also told her everything about the property he owned and monies they had in banks. The court pointed out to her that they had some joint tenancy bank deposits and asked her what, in her opinion, joint tenancy meant.
'A. Yah.
While her answers to these and other questions may not have been in perfect English they clearly indicate that she understood the meaning of joint tenancy, and that she knew and understood the nature and extent of the property and business affairs of her husband and herself. She also appears to have known the extent to which her husband helped finance the boys in their farming operations. When asked if she fixed the price of $20.00 an acre, she replied:
'Yes, I fixed the price, I said it's my own price, I don't take more from them, not $40 or $50 an acre.'
Doctor Thakor, a practicing physician specializing in psychiatry, testified regarding the results of an examination that he gave Eleanor Frank in March, 1963. In the course of his testimony he said:
* * *
* * *
'She told me that she had sold some land to two of her sons, that she knew the reason why she wanted to sell them, she felt that it was her husband's wish that her daughters should get money and she should give the land to her sons and she knew what she was doing when she sold the land to the two sons.'
The examination was made in English. As a result of his examination the doctor stated this conclusion:
'I would say as far as that dealing question is concerned, I would say she is competent.'
On cross-examination the doctor testified that her I.Q. was 67. He also stated:
'I would like to qualify Mrs. Frank's I.Q.; at one time it was average, but due to advancing age and all, her current functioning is at 67.'
The trial court in its memorandum opinion, after commenting on the testimony of Dr. Thakor, stated:
The appeal from the county court brought the case to the district court for a trial of the issues of fact upon evidence offered anew and not upon the record or transcript certified from the county court. Schwarz v. Thoreson, 70 N.D. 552, 296 N.W. 420. The case having been tried to the district court without a jury the appeal to the supreme court imposed upon this court the duty to review the entire district court record and exercise its independent judgment thereon. Nevertheless, the determination of the trial court upon the facts must be given appreciable weight, especially since it is based upon the testimony of witnesses who appeared in person before that court. In re Thoreson's Guardianship, 72 N.D. 101, 4 N.W.2d 822; ...
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... ... 61. Sheila has the burden to show her rights have been prejudiced. See In Re Guardianship of Frank, 137 N.W.2d 218, 225 (N.D.1965) (recognizing burden) ... The purpose for allowing the court to appoint a guardian ad litem ... ...