Jensen's Estate, In re

• Decision Date: 14 November 1968
• Docket Number: No. 8497,8497
• Citation: 162 N.W.2d 861
• Parties: In the Matter of the ESTATE of Chris E. JENSEN, a.k.a. Chris Jensen, Deceased. Tove Emilie Maren MICHAELSEN and Niels Christian Preben Jensen, Respondents, v. Ella J. UNDHJEM; Ella J. Undhjem, Administratrix; Olivia Sorine Josefine Fredrike Christiansen, a.k.a. Olivia Meier; George Christensen, a.l.a. George Christiansen; Agnes Hedensten; Marie Anderson; Dagmar S. Nielsen; Olivia Peterson; Emanuel Christiansen, a.k.a. Emanuel Christensen; Elna Lauritsen; and Kenneth Christensen, Appellants.
• Court: North Dakota Supreme Court

Page 861

162 N.W.2d 861

In the Matter of the ESTATE of Chris E. JENSEN, a.k.a. Chris

Jensen, Deceased.

Tove Emilie Maren MICHAELSEN and Niels Christian Preben

Jensen, Respondents, v. Ella J. UNDHJEM; Ella J. Undhjem, Administratrix; Olivia

Sorine Josefine Fredrike Christiansen, a.k.a. Olivia Meier;

George Christensen, a.l.a. George Christiansen; Agnes

Hedensten; Marie Anderson; Dagmar S. Nielsen; Olivia

Peterson; Emanuel Christiansen, a.k.a. Emanuel Christensen;

Elna Lauritsen; and Kenneth Christensen, Appellants.

No. 8497.

Supreme Court of North Dakota.

Nov. 14, 1968.

Rehearing Denied Dec. 10, 1968.

Syllabus by the Court

1. Whenever a general provision in a statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions, but if the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest legislative intent that such general provision shall prevail. N.D.R.C.1943 § 1--0207 (now N.D.C.C. § 1--02--07).

2. The title of an act may limit the scope of the act, but it cannot broaden or extend its effect as expressed in the body.

3. No statute is continued in force because it is consistent with the provisions of the code on the same subject, but in all cases provided for by the code all statutes heretofore in force in the state, whether consistent or not with the provisions of the code, unless expressly continued in force by it, are repealed and abrogated.

4. The repeal of a statute which repealed another statute does not revive the first repealed statute.

5. An application to vacate a judgment is addressed to the trial court's sound discretion, the exercise of which will not be disturbed on appeal except for abuse.

6. It is held that the trial court abused its discretion in not vacating the judgment so that the constitutional issue could be heard in the instant case because (1) N.D.R.Civ.P. 60(b) should be liberally construed for the purpose of doing substantial justice; (2) there is merit in the defense or claim that was asserted; (3) there are no intervening equities which would make it inequitable to grant relief; and (4), the meritorious defense questioning the validity of the controlling statute constitutes such a fundamental issue that it should not be avoided nor trampled upon by a too technical construction of a rule that is intended to do justice.

7. Sections 11 and 20 of the North Dakota Constitution and § 1 of the fourteenth amendment to the United States Constitution do not prohibit or prevent classification, provided such clssification is reasonable for the purpose of legislation, is based on proper and justifiable distinctions considering the purpose of the law, is not clearly arbitrary, and is not a subterfuge to shield one class or to burden another or to oppress unlawfully in its administration.

8. A proper classification for legislative purposes must embrace all who naturally belong to the class.

9. Legislation cannot arbitrarily divide a class into two parts and constitute a different rule of law governing each of the parts.

10. Classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed and can never be made arbitrarily and without any such basis.

11. N.D.C.C. § 56--01--05 is unconstitutional as an invidious discrimination against illegitimate children in violation of § 1 of the fourteenth amendment to the United States Constitution and § 20 of the North Dakota Constitution.

12. In North Dakota there is no common law in any case in which the law is declared by the code.

B. L. Wilson, Bowbells, and Rolfstad, Winkjer, Suess & Herreid, Williston, for appellants.

McGee, Van Sickle, Hankla & Backes, Minot, and Johnson & Sands, Minneapolis, Minn., for respondents.

ERICKSTAD, Judge.

All parties to this action descend from a common female ancestor, Emilie Maria Christiansen Jensen, who was born in Denmark August 9, 1851, and died there December 19, 1895.

Emilie Christiansen bore four illegitimate children: Karl Christian Vilhelm Christiansen, born November 4, 1870; Madsine Caroline Amalie Christiansen, born December 18, 1872; Laurits Valdemar Frederik Kristensen, born October 7, 1876; and Olivia Sorine Josefine Frederikke Christiansen, born August 4, 1879. All of these people were born in Denmark and emigrated to the United States.

On January 15, 1884, Emilie Christiansen was married to Niels Christian Jensen, who was born February 24, 1850, and died May 27, 1933. She bore him three children: Christian Edvard Martinus Jensen, the decedent in this case, born April 14, 1884; Dagmar Marie Magdalene Jensen, born May 30, 1887, died June 28, 1890; and Daniel Marinus Magnus Jensen, born September 11, 1892, died June 20, 1964.

So far as the record of this case discloses, Christian (Chris) Jensen never married nor had children. His half sister Olivia, now Mrs. Meier, is living in the State of New York. All of the other children of Emilie Christiansen Jensen are dead.

The grandchildren of Emilie Christiansen Jensen are: George Christiansen, Agnes Hedensten, and Marie Anderson, who are the children of Karl Christiansen; Dagmar Nielsen, Olivia Peterson, Emanuel Christensen, and Elna Lauritsen, who are the children of Madsine Christiansen; Ella Undhjem and Kenneth Christensen, who are the children of Laurits Kristensen; and Tove Emilie Maren Michaelsen and Niels Christian Preben Jensen, who are the children of Magnus Jensen. The last two named grandchildren, Danish nationals, are the respondents in the case; and all the other grandchildren, plus Olivia Christiansen Meier and Ella Undhjem in her capacity as the administratrix of the estate of Chris E. Jensen, are the appellants.

In the instant case all but one of the individual appellants are issue of illegitimate children; but as the issue of illegitimate children are subject to the same rule of law as are the illegitimate children, we shall hereafter refer to the appellants as the illegitimate children and to the respondents as the legitimate children.

A genealogical table to assist in one's understanding of the relationships of the parties follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

A summary of the pertinent procedural facts follows:

Chris E. Jensen, the distribution of whose estate is in dispute in this lawsuit, died intestate on July 30, 1965, at the Lutheran Home for the Aged in Minot. At the time of his death he was a resident of Ward Township in Burke County, North Dakota. Mr. Jensen's estate was estimated by Ella Undhjem in her petition for appointment as administratrix to be of the value of $125,000. In the petition for her appointment as administratrix Mrs. Undhjem listed the individual appellants and the respondents as the next of kin and heirs at law of Chris E. Jensen. Letters of administration were issued to Mrs. Undhjem on September 10, 1965. As the respondents, whom we have designated in this opinion as the legitimate children, are residents of Denmark, service of the notice of the petition for appointment of administratrix was served on them through service upon the Honorable Gordon A. Johnson, vice consul of Denumark, with offices at Minneapolis, Minnesota.

By notice dated August 24, 1966, the hearing of the petition for approval of the final report and accounting and for distribution of the residue of the estate was set for September 16, 1966. The legitimate children, through the Danish consul general, whom they had made their attorney in fact, and the consul general, through the law firm of which he is a member, associated with the law firm of McGee, Van Sickle, Hankla & Backes, resisted the petition on the ground that only the legitimate children were entitled to share in the residue of the Chris E. Jensen estate. After receiving briefs on the law from the respective parties, the county court granted the petition for approval of the final report and accounting and for distribution of the residue of the estate, which permitted the illegitimate children to share with the legitimate children. (The children of the deceased illegitimate children and the children of the legitimate child were permitted to share by right of representation.)

Thereafter the legitimate children appealed from the order of the county court dated November 14, 1966, to the District Court of Burke County. That court concluded, following a hearing on the appeal, that N.D.C.C. § 56--01--05 prohibited the illegitimate children from inheriting from the deceased. Pursuant to the district judge's order of November 8, 1967, judgment was entered on November 10, 1967, providing that the legitimate children were the only heirs at law of the deceased, Chris E. Jensen, and thus the only ones entitled to share in his estate. It is from that judgment and from the order denying the motion to vacate the judgment that the present appeal is taken by Ella J. Undhjem, individually and as administratrix of the estate of Chris E. Jensen, deceased, and by the other named appellants in their individual capacities.

Following the entry of the judgment the illegitimate children, having then secured the services of a lawyer other than the one who represented them before the entry of the judgment, moved on March 29, 1968, to vacate the judgment under N.D.R.Civ.P. 60(b). Before the judgment the illegitimate children, as well as the administratrix of the estate, were represented by Mr. B. L. Wilson; thereafter Mr. Wilson was assisted by Mr. Dean Winkjer of the law firm of Rolfstad, Winkjer, Suess & Herreid.

In support of the motion to vacate the judgment the new counsel asserted that the failure on the part of the former counsel to investigate the laws of the...