Honerud's Estate, Matter of

• Decision Date: 20 June 1980
• Docket Number: No. 9721,9721
• Parties: In the Matter of the ESTATE of Marius HONERUD, Deceased. Civ.
• Court: North Dakota Supreme Court

Page 619

294 N.W.2d 619

In the Matter of the ESTATE of Marius HONERUD, Deceased.

Civ. No. 9721.

Supreme Court of North Dakota.

June 20, 1980.

Rehearing Denied July 17, 1980.

Mack, Moosbrugger, Ohlsen & Dvorak, Grand Forks, for petitioner Kenneth Sanden; argued by Richard A. Ohlsen, Grand Forks.

Conmy, Feste & Bossart, Fargo, for respondents Adeline Sanford and Hermoine Hammargren; argued by Charles A. Feste, Fargo.

PAULSON, Justice.

This is an appeal from an August 21, 1979, judgment of the Cass County District Court, entered pursuant to a jury verdict finding the March 22, 1978, will of Marius Honerud invalid. We affirm.

On April 20, 1978, appellees Adeline Sanford ("Adeline") and Hermoine Hammargren ("Hermoine") the daughters of Marius Honerud, filed for probate a will executed by Honerud on October 12, 1973. Five days later, on April 25, 1978, Kenneth Sanden ("Sanden") filed for probate a will executed by Honerud on March 22, 1978. ¹ The validity of the contested will was tried in county court and the county judge determined that the testator, Honerud, lacked testamentary capacity and therefore the county judge found the contested will invalid and admitted the 1973 will of Honerud to probate. Sanden appealed the county court decision to the Cass County District Court. A trial de novo was held in district court before a twelve-person jury and the same issues were litigated as had been litigated in county court.

Section 30.1-15-07 of the North Dakota Century Code provides as follows:

"Formal testacy proceedings Burdens in contested cases. In contested cases, petitioners who seek to establish intestacy have the burden of establishing prima facie proof of death, venue, and heirship. Proponents of a will have the burden of establishing prima facie proof of due execution in all cases, and, if they are also petitioners, prima facie proof of death and venue. Contestants of a will have the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, revocation, or other cause affecting its validity. Parties have the ultimate burden of persuasion as to matters with respect to which they have the initial burden of proof. If a will is opposed by the petition for probate of a later will revoking the former, it shall be determined first whether the later will is entitled to probate, and if a will is opposed by a petition for a declaration of intestacy, it shall be determined first whether the will is entitled to probate."

Pursuant to § 30.1-15-07, N.D.C.C., the later, or 1978, will of Marius Honerud was litigated first to determine its validity. Sanden, therefore, was the proponent of the will and carried the burden of establishing prima facie proof of due execution. Adeline and Hermoine, as contestants and opponents of the later will, carried the burden of proving lack of testamentary intent or capacity, undue influence, or fraud. On August 14, 1979, the jury returned a special verdict which determined that Honerud lacked testamentary capacity on March 22, 1978, and that the contested will was obtained by Sanden through fraud and undue influence.

Honerud died at the age of 86 in the Americana Healthcare Center in Fargo on March 25, 1978. He was a lifelong resident of rural Gardner, North Dakota, and since 1940 he had lived on a farm which he had purchased near there. His wife died in 1972 and Honerud had lived alone there since that time.

On March 6, 1978, Honerud was admitted to the Dakota Hospital in Fargo. He was scheduled to undergo surgery, but decided not to have the surgery and withdrew his previous consent. Later the same day he agreed to go forward with the surgery but he was discharged from the hospital until the operation could be rescheduled. He was readmitted to Dakota Hospital on March 14 and on March 15 surgery was performed to remove a cancerous tumor from his lower lip and jaw. On March 21, Honerud was discharged from Dakota Hospital and transferred to the Americana Healthcare Center.

On March 22, 1978, three days prior to Honerud's death, the contested will was allegedly executed. Dora Hanson, who resides in Sanden's home and is a beneficiary under Sanden's will, testified that she had gone to the Americana on March 22 to visit Honerud. She further testified that she left the Americana and was followed by Honerud and, together, they took a cab to downtown Fargo where they met Sanden. Hanson stated that Honerud informed both her and Sanden that he wanted to make a new will leaving his farm and property to Sanden. Hanson also testified that, with pencil and paper, she drafted a will, using as a guide a copy of Sanden's will which was in the glove compartment of Sanden's car. Sanden testified that Honerud read the will and signed it in the presence of Sanden and Hanson as witnesses. Testimony of Hanson and Sanden indicated that about an hour and a half elapsed during which the will was prepared and executed.

The testimony of Hanson and Sanden with reference to the drafting of the 1978 Honerud will was contradicted by much of the evidence in the record. A handwriting expert testified that Honerud's signature appeared to be a "guided hand" signature and that the guiding hand appeared to be the same hand that drafted the body of the will. The expert also testified that the contested will appeared to have been authored under ideal circumstances, such as while seated at a table and that it would be most unusual for such fluid movement to be possible while handwriting in the front seat of an automobile.

Several witnesses who had seen Honerud in the days prior to his death testified that he was extremely disoriented and incoherent and that he tended to wander aimlessly in the nursing home. The testimony of these witnesses, some of whom were nurses who had been in every-day contact with Honerud prior to his death and some of whom were lifelong friends of Honerud, supports the jury determination that Honerud lacked testamentary capacity on March 22, 1978.

Sanden has raised two issues on appeal. The first is that the trial court erred in failing to instruct the jury properly on the burden of proof. Sanden proposed the following instruction:

"A will contestant must prove mental incapacity and undue influence by clear, convincing, and satisfactory evidence."

The trial court instructed the jury that Adeline and Hermoine were required to prove mental incapacity and undue influence by "a preponderance of the evidence".

Rule 51(c) of the North Dakota Rules of Civil Procedure provides:

"RULE 51 INSTRUCTIONS TO JURY

"(c) Exceptions to instructions. The giving of instructions and the failure to instruct the jurors shall be deemed excepted to unless the court, before instructing the jurors, shall...