Guardianship of Viereck, Matter of, 15449

• Decision Date: 22 July 1987
• Docket Number: No. 15449,15449
• Citation: 411 N.W.2d 102
• Parties: In the Matter of the GUARDIANSHIP OF Herman Francis VIERECK, an Incompetent Person.
• Court: South Dakota Supreme Court

Page 102

411 N.W.2d 102

In the Matter of the GUARDIANSHIP OF Herman Francis VIERECK,

an Incompetent Person.

No. 15449.

Supreme Court of South Dakota.

Argued April 22, 1987.

Decided July 22, 1987.

James D. Taylor of Tinan, Smith & Taylor, Mitchell, for appellant Valerie Mitchell.

John B. Wehde, and Douglas G. Fosheim of Wehde, Fosheim & Haberstick, Huron, for appellee Everett Bates.

Randolph F. Stiles, Mitchell, for the Estate.

SABERS, Justice.

Valerie Mitchell (Mitchell) appeals the order approving the final account of Everett Bates (Bates), the guardian of Herman Francis Viereck (Viereck). We affirm.

Facts

On July 19, 1982, Alyce Bates petitioned the court for appointment of a guardian over the person and estate of her father, Viereck. Alyce's husband, Bates, was appointed on August 3, 1982. Bates furnished a $200,000 Western Surety bond.

Bates filed an initial accounting and inventory (of cash and securities) with the court on December 1, 1982. (An additional inventory of personal property, other than cash and securities, was included in Bates' final account filed March 19, 1986.) At the time of the initial guardianship accounting, Viereck's children included four daughters: Alyce Bates, Valerie Youngs, Ethel Ferguson, and Virginia Peters; and one son: Virgil Viereck. Ethel Ferguson predeceased Viereck. Mitchell is Ethel Ferguson's daughter.

Viereck died on May 17, 1983. After his death, Bates filed his first final account as guardian on September 8, 1983. This was later supplemented to account for certain cash gifts, annuities, and personal property pursuant to court order. On December 5, 1984, the executor of Viereck's estate, Norwest Capital Management and Trust Company (executor) filed objections and moved the court for a determination upon the first final account.

Following a hearing on December 20, 1984, the court entered findings and conclusions on February 4, 1985. The court found that Bates wrongfully distributed cash and annuities to Viereck's four daughters ¹ and ordered him to return the cash and annuities to Viereck's estate with 8 1/2% interest.

On November 7, 1985, a hearing was held on the executor and Mitchell's order to show cause why Bates should not be held in contempt for failing to abide by the court's previous order of February 4, 1985. In its Memorandum Decision dated December 13, 1985, the court ruled that: Bates failed to cause the return of the $6,250 (plus interest) cash distribution improperly given to Ethel Ferguson; Bates properly paid interest on the annuities as ordered; the claim for double damages and punitive damages against Bates was denied; and Bates was required to file a final account within thirty days.

Bates filed a Final Account of Guardian on March 19, 1986. On April 7, 1986, a hearing was held on the objections of the executor and Mitchell to this final account. On June 3, 1986, the court entered an order approving the final guardianship account, discharging Bates as guardian, and relieving his bondsman from any further liability. Finally, the court ordered Viereck's estate to pay any outstanding bond premiums owed by the guardianship for Bates' surety bond. The executor did not appeal the court's order approving Bates' final account but Mitchell did.

Mitchell's Claims

Mitchell claims that: (1) punitive and double damages should have been assessed against Bates for wrongfully distributing the cash and annuities to the Viereck daughters, (2) Bates failed to return certain items of personal property to the estate, (3) the final account was improper, (4) Bates and his bondsman should not have been discharged, and (5) the estate should not be obligated to pay the outstanding surety bond premiums.

1. PUNITIVE AND DOUBLE DAMAGES

Mitchell contends that double damages should have been assessed against Bates under SDCL 30-17-3 ² which applies to guardianships through SDCL 30-26-3. ³ She further claims that punitive damages were warranted under SDCL 30-17-8. ⁴ Mitchell bases these claims upon Bates' alleged conversion of Viereck's cash and annuities without his consent. In its memorandum decision dated December 13, 1985, the trial court discussed the executor's claim for double damages as follows:

These damages are contingent upon a finding that guardianship assets were stolen or alienated by Mr. Bates. There is no indication that Mr. Bates intended to deprive his ward of guardianship funds. Rather, he jumped the gun in distributing such funds to those he believed to be heirs of the ward. While his actions were improper, they do not rise to the level of intentional stealing. No double damage award shall be granted. Likewise, no punitive damage award is justified by the evidence.

Bates argued before the trial court that SDCL 30-17-3 did not apply to guardianship matters. On appeal, Bates conceded Mitchell's argument that SDCL 30-17-3 applies to both probate and guardianship proceedings. This concession does not entirely resolve the matter, however, because SDCL 30-17-3 on its face, limits liability and double recovery "to an action by the executor or administrator of the estate ... for the benefit of the estate." This language excludes Mitchell and as indicated above, the executor has abandoned its claim by not appealing. Mitchell's claim for punitive damages under SDCL 30-17-8 stands on different footing. The statutes, ⁵ when taken together, do not restrict a claim for punitive damages to the executor or administrator of the estate for the benefit of the estate as do those relating to double recovery. Therefore, we consider her claim.

Mitchell relies upon Matter of Estate of Hansen, 366 N.W.2d 852 (S.D.1985) to support her claim for punitive damages. In Hansen, this court affirmed the trial court's conclusion that the executor of decedent's estate mishandled the estate's assets and wrote:

In the referee's memorandum opinion, adopted by the trial court, he states that the discrepancies were so great he was compelled to the conclusion that they could not possibly have been the result of any honest mistake and that the discrepancies among the various accountings were the product of an intentional intent to secrete assets of the estate.

Id. at 854.

As in Hansen, Mitchell argues that Bates' improper distribution of Viereck's cash and annuities to the four daughters, one of which was Bates' wife, and the discrepancies in the accountings show that the assets were alienated. Although Mitchell argues that Bates intended to convert the guardianship funds, the evidence shows otherwise and the trial court so found:

--Bates knew the contents of Viereck's will which provided for the distribution of the (Anchor National Life) annuities to his four daughters.

--In an effort to reduce Viereck's estate tax, Bates distributed the annuities to the three surviving daughters without Viereck's consent and before his death. See infra note 6.

--Although Bates claimed he consulted his attorney about making the cash distributions, he remained concerned. Therefore, he (or his wife) spoke with each of the Viereck daughters before the distributions were made and obtained their agreement (or understanding) that if the court should later deem the distributions improper, they would return the money.

--After the court ordered Bates to restore the cash and annuities to the estate he did so except for the $6,250 distributed to Ethel Ferguson, which Mitchell received but refused to refund.

--By the time of the final accounting, the distribution to Ethel Ferguson was returned to the estate from Bates' personal funds.

As indicated, when the court ordered Bates to return the money, he promptly caused compliance through the daughters, except for Ethel Ferguson who predeceased Viereck. Ethel Ferguson received $6,250 on December 30, 1982, approximately sixteen days before her death. This became a part of her estate and Mitchell was her sole heir. Despite Bates' prior agreement with Ferguson, neither Mitchell nor Ferguson's husband would return the money. They claimed they were unaware of any agreement between Bates and Ethel Ferguson. Therefore, Bates restored the $6,250 plus interest to the Viereck estate out of his own pocket.

The evidence suggests that Bates made the distributions in good faith in accordance with what he believed to be Viereck's testamentary intentions. He stated that he thought as guardian he could make cash distributions to Viereck's heirs up to $10,000. Although the transfer was improper, the Viereck daughters agreed to it and there was no finding to the contrary. Bates realized no personal gain from the transaction. Even though Bates "jumped the gun" by distributing the cash and annuities to Viereck's heirs before his death and without his consent, it does not show that Bates intended to steal or alienate his ward's assets. As distinguished from Hansen, supra, the evidence does not support Mitchell's claim that Bates intentionally converted the assets. Rather, it shows that he made mistakes which he later corrected, without substantial harm to anyone but himself. The evidence does not support Mitchell's claim for punitive damages and the court's denial was within its discretion under SDCL 30-17-8.

2. THE IMPROPERLY TRANSFERRED PERSONAL PROPERTY WAS SUFFICIENTLY RETURNED TO THE ESTATE

At the time the final account was filed, the cash distributions of $6,250 to each of the Viereck daughters were restored to the guardianship funds. The annuities, or their equivalent, which were distributed to all of the daughters except Ethel Ferguson (who was deceased at the time of the distribution), ⁶ were also returned to the guardianship.

Mitchell also claims that Bates illegally transferred some items of Viereck's personal property which have not been returned to the estate. These include several diamond rings, a Black Hills gold ring, china, a silver tea service, coins, and an old broken safe. The silver service and china are listed with the inventory of Viereck's...