Holler v. Aamodt
| Decision Date | 03 June 1915 |
| Docket Number | 1915 |
| Parties | INGA HOLLER v. MARIT AMODT |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Bottineau County, Burr, J.
Affirmed.
John D Scherer, for appellant.
Where a will is made devising all the property to a person, with the intent of having this person distribute according to the rule of succession, and such person takes the property with knowledge of the intent of the testator, he holds it in trust for such purpose, and such distribution can be compelled. Gilpatrick v. Glidden, 2 L.R.A. 662, and notes, 81 Me. 137, 10 Am. St. Rep. 245, 16 A. 464.
Bowen & Adams, for respondent.
The execution and delivery of the bill of sale and the deed were wholly immaterial matters, and plaintiff was not entitled to amend the complaint to conform to such proof. Maclaren v Kramar, 26 N.D. 244, 50 L.R.A.(N.S.) 714, 144 N.W. 85.
Where a person takes property by a deed, bill of sale, or by a will with the agreement that she would transfer the same to the natural heirs of the deceased, she becomes a trustee at once upon failing to so transfer. 3 Pom. Eq. Jur. 3d ed §§ 1053-1055, and notes; note to Cassels v. Finn, 106 Am. St. Rep. 95.
There must be, however, on the part of the trustee, or grantee, or devisee, a fraudulent agency in procuring the devise or grant. Gilpatrick v. Glidden, 81 Me. 137, 2 L.R.A. 662, 10 Am. St. Rep. 245, 16 A. 464.
On April 14, 1911, Knute Amodt executed a certain warranty deed to his lands and a bill of sale of his personal property to his wife; on May 5, 1911, he executed a will whereby he devised and bequeathed the same property, real and personal, to his said wife. On May 14, 1911, he died, leaving besides his wife, aforesaid, seven children. The oldest, Inga, who is married, brings this action, setting up the aforesaid facts, and claiming that the transfer of the property by the deeds and bill of sale aforesaid, and the execution of the will, were pursuant to an oral agreement had between the father and mother and children, that said property be transferred to the mother with the understanding and agreement that she "would lawfully distribute his property among his heirs, according to the rule of succession." That the purpose of said Knute Amodt in making said transfers and in preparing and executing the will was to save his estate the cost of the probate court. The mother answers, admits that the execution of the deeds and bill of sale were without consideration, and disclaims any claim thereunder. She does, however, claim under the will, and denies that it was made pursuant to any agreement that she would distribute said property among the heirs, but alleges that she is the absolute owner of the property. Upon the trial of the action, the mother was called for cross-examination, and testified that her husband had been sick about six months before his death. That she knew nothing of the deeds or bill of sale.
She testifies:
Q. Did you say that he made a testament in regard to his property?
A. Yes. It was--he left everything to me and says I shall divide it myself.
Q. That is, he made a writing in regard to his property that you call a testament?
A. Yes. He said how he wanted it. . . .
Q. Now, was your husband in bed at that time he told what he wanted to go into this testament?
A. He was in bed. It was not very much he was able to be up all winter, but he was with his full senses until the last day.
Q. And was Mr. Thompson there at the time when he wrote this testament, as you call it?
A. Yes. He was in the room with Knute, and I was not asked about anything. Just told him to state it just the way he wanted it.
Q. Was there anybody else there beside Mr. Thompson at the time he--at the time it was written?
A. Yes, it was Hans Eikness and Conrad and Emil Jonsgaard and a boy that worked for us.
Q. And did Mr. Thompson write this writing up at that time?
A. Yes, he did.
Q. And after it was written up do you know if anyone signed it?
A. Yes, the witnesses.
Q. Did your husband also sign it?
A. He could not write, but made a cross; that was good enough.
Q. After this writing was made, what was done with it, if you know?
A. Knute said that Otis Thompson should keep it for us in his safe. That was all that was said and all the children were satisfied with it. . . .
Q. Do you know when it was that this writing was made?
A. No, I do not remember. It was some weeks before he died. I can't remember it. . . .
Q. Now, at the time when he made this writing, did he say anything about why he made this--what he made this writing for?
A. He said he did it because he wanted me to have it undisturbed.
Q. At the time that he made that writing, did he say anything about making it to save the costs of administration?
A. I did not hear that,--Otis will know about that; he heard it and I didn't,--he did it for the purpose that there should not be any strife about it.
Q. At the time that he made this writing did he say anything about turning the property over to you for you to distribute, instead of the court; at the time that he made this writing did he say anything that you divide this property instead of the court?
A. Yes, he did. . . . That was about all I heard. I was in the bedroom, and told him he could tell how he wanted it done.
Q. What did you hear him say about dividing up the property instead of the court?
A. I did not hear anything about that. I suppose it is in the testament.
Q. Did you hear him say anything about your dividing up the property among the children?
A. No, he said nothing about that.
Q. Well, what did you mean when you testified that the property was given to you for you to divide the property up among the heirs?
A. Well, then, can't I have it until I get ready to divide myself? . . . I can do it then when I am in a place to do it.
Q. You understood that you were to divide up the property; but that you might make the division when you saw fit?
A. Yes, I think it was so. . . . He owned what he had, and when he gave it to me then I supposed it would be mine.
Q. But when you took the property you understood that some time you would have to divide it up among the children?
A. Yes, I understood that; when Holler came out, I said she was to be the first one to have hers; but we were so much in debt that this year had to be taken care of first.
Q. And you took the property for the purpose of dividing it up afterwards at some time?
A. That is how I understood it.
Q. And you got that understanding you had from what you heard your husband say?
A. Yes, that is how I understood it. And he understood that I was the first one to receive it because I worked hard.
Q. And you thought in taking the property that you could divide it up right away if you wanted to, or you could wait a while before you made the distribution or division?
A. No, I thought I would try to divide it so that everybody would be satisfied, in a decent way.
Q. And you do intend to divide the property according to the wishes of your husband as he told you before he died?
A. Yes, of course, I have to divide it after a while; but we were put back those hard years, but we try and do the best we can until we get that out of the way.
Q. And in dividing it you intend to give to each of the children the share that they would have under the law?
A. Yes. That is what I thought was best.
Q. And you want to do that because your husband asked you to do that before he died?
A. Yes.
Q. And you wanted to do that because he said so at the time he made his testament?
A. Yes, I mean to divide it.
Q. And in dividing it you don't mean to leave your daughter Inga out, do you, but you intend to give her a share also?
A. No, that is what I said to Mr. Holler. Can't he tell you that I said so?
Q. And you husband said he would leave his property to you this way if it was satisfactory to all of the children, did he not?
A. Yes, everyone said "yes" to that.
Q. And the children were all consulted in regard to it, and they were all satisfied?
A. Yes, those that were home.
Q. And because the children were all satisfied, is the reason that your husband left the property that way, is it not?
A. Yes, he said that he was satisfied to have it so. And they all were agreed to have it.
Q. The children all said that it was satisfactory with them for your husband to leave the property to you, did they not?
A. Yes, I should have it just as long as I wanted it. They all said "yes" to that.
Q. Then because the children were all satisfied was the reason that your husband left the property to you?
A. Yes, I think it was.
Q. And that is the way--and that was the talk between you about it?
A. Yes, and was well satisfied with it. And he was glad to be ready to go Home.
Q. And you told him that you would take the property as he wanted you to take it, and that you would divide it among the children yourself?
A. Yes, I have taken care of it, too.
Q. And the reason that you haven't made a division before this is because of the hard years and the failure of the crops?
A. Yes, of course it was; for two years we did not have anything, and we had doctor bills and funeral expenses, and we had no crop, and we had to take care of the funeral expenses.
Q. Ever since your husband died the property has not been in good shape for a division, has it?
A. No, not unless we borrowed at the bank, and that would be too expensive.
Q. And as soon as the property is in shape for division you intend to divide it as your husband requested you and as it was left to you?
A. Yes, that is the intention. The oldest she was first, that is what I said. That is what they shall have. . . .
She further...
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