Knudsen's Estate, Matter of, 3107

• Citation: 322 N.W.2d 454
• Decision Date: 26 January 1981
• Docket Number: No. 3107,3107
• Parties: In the Matter of the ESTATE OF Jerry M. KNUDSEN, deceased, Burleigh County ProbateAppeals from Order Entered
• Court: United States State Supreme Court of North Dakota

Page 454

322 N.W.2d 454

In the Matter of the ESTATE OF Jerry M. KNUDSEN, deceased,

Burleigh County Probate No. 3107 Appeals from

Order Entered January 26, 1981.

Dann G. KNUDSEN and Eric J. Knudsen, as personal

representatives of the estate of Jerry M. Knudsen,

deceased; and Dann G. Knudsen, Eric J.

Knudsen and Jeffrey Knudsen, Appellees,

v.

Susan F. KNUDSEN, one of the heirs at law of Jerry M.

Knudsen, deceased, Appellant.

Civ. No. 10167.

Supreme Court of North Dakota.

July 27, 1982.

E. J. Rose, Bismarck, for appellees.

Mills & Moore, Bismarck, for appellant; argued by William R. Mills, Bismarck.

PEDERSON, Justice.

This is an appeal by Susan F. Knudsen from a summary judgment which decreed that (1) Jerry M. Knudsen died testate; (2) Susan is not entitled to an intestate share as an omitted spouse; and (3) Jeffrey, Dann and Eric Knudsen are the sole devisees of the estate. We reverse and remand for trial.

The principal question to be resolved involves the construction of Secs. 30.1-08-08 (2-508), 30.1-05-01 (2-201), and 30.1-06-01 (2-301), NDCC, and their application to the undisputed facts and inferences submitted by affidavits of the parties.

In 1962 Jerry M. Knudsen made a will containing the following significant provisions:

"SECOND: (a) I give, devise and bequeath to my wife, Lela Margaret Knudsen, all of my estate, both real and personal, and wheresoever the same may be situate[d], of which I may die seized or possessed or to which I may be entitled at the time of my decease, to have and to hold the same to her, absolutely and forever.

"I intentionally omit giving any property to my children, Jeffrey Milo Knudsen, Dann Gudmund Knudsen, and Eric Jonathon Knudsen, for the reason that I know my wife will provide for them.

"(b) If my wife shall pre-decease me, or if she and I shall die simultaneously, or under such circumstances as to render it difficult or impossible to determine with certainty whether she survived me, then, and in any of said events, I give, bequeath and devise all of the real and personal property to which I may be entitled or over which I may have any disposing power at my death, to my children, Jeffrey Milo Knudsen, Dann Gudmund Knudsen, and Eric Jonathon Knudsen, share and share alike, to have and to hold the same to them, absolutely and forever."

The Uniform Probate Code was enacted in North Dakota in 1973 (effective July 1, 1975), and we assume that it has application to this case in the absence of any showing to the contrary. See Sec. 30.1-35-01 (8-101), NDCC.

In 1975 Jerry Knudsen and Lela Knudsen were divorced and, pursuant to the provisions of Sec. 30.1-08-08 (2-508), NDCC, the disposition of property to Lela made by Jerry's will was revoked by operation of law, and the property which is prevented by law from passing to Lela, passes instead "as if" she had predeceased Jerry. Under clause "Second (b)" of the will, all property would, accordingly, pass to Jeffrey, Dann and Eric.

Also, in 1975, Jerry Knudsen married Susan. The 1962 will was not changed or supplemented. Jerry Knudsen died on October 2, 1979, and the probate of his estate proceeded in the Burleigh County Court With Increased Jurisdiction, with Dann G. and Eric J. Knudsen as personal representatives.

After hearing argument of counsel and considering briefs and affidavits which were filed, the probate court, on January 26, 1981, decreed:

"1. That the decedent died Testate and his last will dated April 27, 1962, and admitted to probate in this court is determined to be the Last Will and Testament of the decedent.

"2. That Susan Knudsen, the surviving spouse of the decedent, is entitled to an intestate share of decedent's estate as an omitted spouse under the terms of Section 30.1-06-01 NDCC.

"3. That under the terms of Section 30.1-08-08 of the NDCC, Lela Knudsen, former wife of the decedent, is precluded from taking under the Will due to her divorce from the decedent in 1975.

"4. That under the terms of the Last Will and Testament, the three sons of the decedent, Jeffrey Knudsen, Dann G. Knudsen and Eric J. Knudsen, are the sole devisees of the decedent's estate subject to the terms of Section 30.1-06-01 entitling Susan Knudsen, as the surviving spouse, omitted from the will, to an intestate share in said estate.

"5. The following persons are heirs of the decedent:

Susan Knudsen, surviving spouse

Jeffrey Knudsen, son

Dann G. Knudsen, son

Eric J. Knudsen, son" The three sons, Jeffrey, Dann and Eric, as heirs, and Dann and Eric as personal representatives, all of whom we will hereinafter call the three sons, filed "a general appeal as to both the law and facts" from paragraphs 2 and 4 of the probate court decree, demanding a trial de novo and a jury trial. Susan also filed "a general appeal as to both the law and facts" from paragraph 1 of the decree, and also demanded a trial de novo and jury trial.

Pursuant to Sec. 30.1-02-02 (1-302), NDCC, the district court has appellate jurisdiction over appeals from probate court "as provided in chapter 30-26." Because the North Dakota Legislature omitted Secs. 1-308 and 1-309 when it adopted the Uniform Probate Code, the district court may not exercise equity jurisdiction on appeals from the probate court. Matter of Estate of Jones, 288 N.W.2d 758, 760 (N.D.1980). Cases from jurisdictions that have granted equity jurisdiction to their probate courts are not readily applicable in this state. See, for example, the opinion of widely acclaimed Justice Roberts of Pennsylvania in Estate of Greenfield, 484 Pa. 141, 398 A.2d 983, 7 A.L.R.4th 980 (1979), which refers to "unjustly enriching the electing widow" and "logic and fairness." Chapter 30-26 was repealed, effective January 1, 1983, by Sec. 51, Ch. 319, S.L.1981. Under Article VI, Sec. 8, North Dakota Constitution, the appellate jurisdiction of the district court may be provided by law or by rule of the Supreme Court.

The three sons moved for a summary judgment as to both appeals to the district court, supported by Dann Knudsen's affidavit stating facts which are of his own personal knowledge, as well as information from his files as personal representative, and from the probate court file. Susan resisted the motion for summary judgment, supported by two of her own affidavits and an affidavit by a Minneapolis lawyer by the name of Ranta. To seek a summary judgment under Rule 56, NDRCivP, is appropriate in probate appeals to the district court under certain circumstances. Boone v. Estate of Nelson, 264 N.W.2d 881 (N.D.1978), and Matter of Estate of Bieber, 256 N.W.2d 879 (N.D.1977).

The moving documents, the resisting documents, and the supporting affidavits from both sides are too long and complex to quote here. We do conclude, however, that ultimately the question before the district court primarily involved a dispute over the eligibility of Susan as a surviving spouse, omitted from the will, to claim an intestate share in the estate under North Dakota law.

The district court issued a Memorandum of Decision which provided:

"It clearly appears to the Court, from all of the undisputed evidence submitted by the parties relative to the Motion of ... [the three sons] for Summary Judgment, that:

"1. The augmented estate of the Testator, Jerry M. Knudsen, was $295,101.

"2. The maximum elective share of the augmented estate that ... [Susan] could receive as an omitted spouse under Section 30.1-05-01 (2-201), NDCC, is one-third of the augmented estate, or $98,367.

"3. The Testator, Jerry M. Knudsen, provided for ... [Susan] by transfers outside his will in an aggregate amount in excess of $98,367.

"The obvious purpose of Section 30.1-06-01 (2-301), NDCC, is to insure that a surviving spouse who marries the testator after the execution of his will, receives the share of the estate she would have received if the decedent had left no will, unless a contrary intention of the testator is made manifest.

"In view of the fact that Section 30.1-06-01 (2-301), NDCC, provides for a statutory disposition contrary to the testator's will, it must be construed as having been satisfied in a case where, as in the instant case, the testator provided for the spouse by transfers outside the will in an amount at least equal to her intestate share of the augmented estate. To allow her a greater share under Section 30.1-06-01 (2-301), NDCC, than her statutory share under Section 30.1-05-01 (2-201), NDCC, would corrupt the purpose of Section 30.1-06-01 (2-301), NDCC, by providing a windfall to the testator's widow at the expense of his three children whom he ultimately expected would be provided for, either by his will, if his first wife, the mother of ... [the three sons], predeceased him, or by her if she succeeded to his estate. Neither of these events occurred." [Emphasis in original.]

When a married person domiciled in this state dies (Jerry Knudsen), the surviving spouse (Susan) has a right of election to take (or not to take) an elective share of one-third of the augmented estate under certain limitations and conditions (Sec. 30.1-05-01 (2-201), NDCC). We conclude, from our examination of the record of proceedings in the probate court and in the district court, that Susan has not elected to take the elective share of one-third of the augmented estate.

When a married person (Jerry Knudsen) dies leaving a will executed before the marriage, omitting the spouse (Susan), she shall receive the same share she would receive if there was no will (ordinarily one-half of the intestate estate, under Sec. 30.1-04-02(4) (2-102), NDCC), unless it appears from the will that the omission was intentional or the testator (Jerry Knudsen) provided for her (Susan) by transfer outside the will and his (Jerry's) intent that the transfer be in lieu of a testamentary provision is shown by his (Jerry's) statements or from the amount of the transfer or other evidence (Sec. 30.1-06-01 (2-301), NDCC).

We are instructed by Sec. 30.1-01-02 (1-102),...