In re Estate of Gleeson, 20020117.

• Decision Date: 30 December 2002
• Docket Number: No. 20020117.,20020117.
• Parties: ESTATE OF John T. GLEESON, Deceased. Bryan L. Giese, Personal Representative, Petitioner and Appellee v. George J. Gleeson, Respondent and Appellant. Margaret Ann Weekes, Kathleen Mary Gleeson, Respondents v. Jerome M. Gleeson, Respondent and Appellee.
• Court: North Dakota Supreme Court

655 N.W.2d 69

2002 ND 211

ESTATE OF John T. GLEESON, Deceased.

Bryan L. Giese, Personal Representative, Petitioner and Appellee v. George J. Gleeson, Respondent and Appellant.

Margaret Ann Weekes, Kathleen Mary Gleeson, Respondents v. Jerome M. Gleeson, Respondent and Appellee.

No. 20020117.

Supreme Court of North Dakota.

December 30, 2002.

David Boeck, Bismarck, ND, for respondent and appellant.

Bryan L. Giese, pro se, Mandan, ND, petitioner and appellee.

Benjamin C. Pulkrabek, Mandan, ND, for respondent and appellee Jerome M. Gleeson.

NEUMANN, Justice.

[¶ 1] George J. Gleeson appeals from the trial court's March 19, 2002, final order closing the estate, and the February 3, 2002, order approving sixth and final account. We affirm.

I

[¶ 2] John T. Gleeson died January 28, 1992. The trial court appointed Jerome M. Gleeson, a son, as personal representative of the estate. John's Last Will and Testament provided only one specific devise: that John's car go to Jerome's older child. After settlement of claims, the remainder of the estate was to go to residuary devisees. The four residuary devisees were John Gleeson's four children: Jerome M. Gleeson, George J. Gleeson, Margaret Gleeson Weekes, and Kathleen M. Gleeson. A codicil provided that Jerome could occupy John's residence until Jerome's youngest son completed high school or reached nineteen years of age, whichever occurred first. Jerome was also allowed $3,000 per year to help with taxes, insurance, and maintenance of the residence. In 1996, the four residuary devisees sold the residence to Jerome's dependent minor children, Matthew and Patrick Gleeson. All four residuary devisees signed a quitclaim deed transferring their interest in the residence to Jerome's children. At the time George signed the quitclaim deed, George had a court-appointed conservator. The conservator did not sign the quitclaim deed or any other document that would have transferred George's interests.

[¶ 3] In April of 1999, George petitioned the trial court for an order to show cause regarding the administration of the estate. The trial court ordered Jerome to provide a complete accounting of estate business, to show why the court should not appoint an expert to audit the estate business, and to show why Jerome could not distribute the remaining estate assets and close the estate by June 1, 1999. On February 9, 2000, the trial court upheld the sale of the residence and dismissed Jerome as personal representative. Attorney Bryan Giese was appointed successor personal representative on April 27, 2000. The trial court, in its sixth and final account, declined to require Jerome to produce additional financial records and ordered the estate to pay the fees of the successor personal representative. The estate closed March 19, 2002, after distribution of assets. George appeals, arguing the trial court improperly held the sale of the residence was valid, erred by refusing to require personal representative Jerome Gleeson to produce additional financial records, and abused its discretion by ordering the estate to pay the successor representative's fees.

II

[¶ 4] Regarding the sale of the residence, the dispositive issue is whether, under North Dakota's Uniform Probate Code, George possessed the capacity to quitclaim his interest in the residence while he was a protected person under a conservatorship.

[¶ 5] George argues the sale of the residence was improper because he was under a conservatorship and did not possess the capacity to sign the quitclaim deed transferring his interest in the residence. Alternatively, George argues the order creating the conservatorship gave his conservator powers similar to that of a guardian, creating a de facto guardianship. Therefore, he did not have authority to contract away his interests.

[¶ 6] The trial court ruled George's signature on the quitclaim deed was valid and the sale of the residence was proper because George's conservator accepted the proceeds of the sale, did not object to the sale, never sought to rescind the sale of George's interest, and North Dakota's Uniform Probate Code allowed George to transfer his interest in the property while he was protected by a conservatorship.

[¶ 7] The interpretation and application of a statute is a question of law, fully reviewable on appeal. In the Matter of the Estate of Zimmerman, 1998 ND 116, ¶ 13, 579 N.W.2d 591. "We interpret uniform laws in a uniform manner, and we may seek guidance from decisions in other states which have interpreted similar provisions in a uniform law." In re Estate of Zimmerman, 2001 ND 155, ¶ 14, 633 N.W.2d 594. We may look to the Editorial Board Comments of the Uniform Probate Code to interpret its provisions. Id.

[¶ 8] In North Dakota, a court order finding a basis for appointment of a conservator has no effect on the capacity of the protected person. N.D.C.C. § 30.1-29-08(2)(e) (U.P.C.5-408). While "[t]he appointment of a conservator vests in the conservator title as trustee to all property of the protected person ..., [t]he appointment... is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation...." N.D.C.C.§ 30.1-29-20 (U.P.C.5-420). While the title to all the protected party's property may have vested in the conservator, a protected person can still enter into contracts: "Unlike a situation involving appointment of a guardian, the appointment of a conservator has no bearing on the capacity of the disabled person to contract or engage in other transactions." Id., Editorial Board Comment.

[¶ 9] The courts of Maine and Montana, states adopting versions of the Uniform Probate Code similar to ours, interpret these statutes to provide that a person, while under the protection of a conservatorship, retains the capacity to contract or engage in other transactions. Taylor v. Kennedy, 719 A.2d 525, 528 (Me.1998); Matter of Estate of Clark, 237 Mont. 179, 772 P.2d 299, 303 (1989).

[¶ 10] In Taylor, the trial court had construed a conservatorship as limiting the ability of the protected person to exercise control over employees because the protected person lacked the capacity to be an employer. 719 A.2d at 528. The Supreme Judicial Court of Maine stated, "[n]othing in the Probate Code, however, states that a person under a conservatorship cannot be an employer. Indeed, the Code suggests the opposite." Id. Relying on 18-A M.R.S.A. §§ 5-408(5) and the Editorial Board Comment to 5-420 from Maine's Uniform Probate Code, the Maine Court concluded the statutes did not limit the protected person's capacity to be an employer and to control his employees. Id.

[¶ 11] In Clark, the Supreme Court of Montana interpreted Mont.Code Ann.§ 72-5-421(5): "[t]he institution of a conservatorship is not an adjudication of competency and has no effect on the protected person's capacity. The protected person is therefore presumed to have the capacity to contract with third parties." 772 P.2d at 303 (citation omitted). Clark involved an additional complication; the sale in that case was between the protected persons and their conservator. However, we find persuasive the Montana Court's interpretation of the conservatorship statutes as to the capacity of protected persons.

[¶ 12] In the case at bar, Jerome, Margaret, and Kathleen knew George was a protected person subject to a conservatorship at the time of the transfer. George and the other residuary devisees signed the quitclaim deed transferring title of the residence to Matthew and Patrick Gleeson. George's conservator accepted the proceeds of the sale, did not object to the sale, and did not seek to rescind or void the sale. Nothing in our statutes suggests George could not quitclaim his interest in the residence. Indeed, the code suggests the opposite. Because our conservatorship statutes do not limit a protected person from engaging in transactions and a protected person is presumed to have the capacity to contract with third persons, we conclude George had the capacity to sign the quitclaim deed and transfer his interest in the residence.

[¶ 13] Alternatively, George argues he was under a de facto guardianship at the time he signed the quitclaim deed and, therefore, he had no authority to contract away his interest in the residence. In support, George contends his conservator was a de facto guardian because the trial court's order appointing the conservator (1) gave the conservator full legal authority over George, which is allowed under the guardianship statutes but not under the conservatorship statutes; (2) referred to George as a "ward," the term used for an incapacitated person under our guardianship statutes but not under the conservatorship statutes; (3) found George to be "incapacitated," a finding not required under the conservatorship statutes but required under the guardianship statutes; and (4) allowed the conservator limited authority over George's place of residence, a power only allowed under the guardianship statutes. We disagree. [¶ 14] Procedures outlined in our statutes for appointing a guardian and a conservator are very different; the bar for appointment of a guardian is higher than that for appointment of a conservator. The appointment of a guardian requires the participation of a physician or clinical psychologist, while a trial court "may" have a physician participate in conservatorship proceedings. Compare N.D.C.C. § 30.1-28-03(3) and (5) with N.D.C.C. § 30.1-29-07(2). Nothing in the record indicates a physician or clinical psychologist participated in the appointment of George's conservator.

[¶ 15] While the appointment order found George to be "incapacitated," incapacity under the guardianship statutes must be found by clear and convincing evidence, while the conservatorship statutes merely require the trial court to appoint a conservator after a basis for the appointment "has been established." Compare N.D.C.C. § 30.1-28-04(2)(b) with ...