Liebelt v. Saby, 9575

• Decision Date: 22 May 1979
• Docket Number: No. 9575,9575
• Citation: 279 N.W.2d 881
• Parties: Ann G. LIEBELT, Appellee and Cross-Appellant, v. Clifford L. SABY, Individually and as Personal Representative of the Estate of Lena Saby, Appellant and Cross-Appellee. Civ.
• Court: North Dakota Supreme Court

Page 881

279 N.W.2d 881

Ann G. LIEBELT, Appellee and Cross-Appellant, v. Clifford L. SABY, Individually and as Personal Representative of the Estate of Lena Saby Appellant and Cross-Appellee.

Civ. No. 9575.

Supreme Court of North Dakota.

May 22, 1979.

Freed, Dynes, Malloy & Reichert, P. C., Dickinson, for appellant and cross-appellee; argued by George T. Dynes, Dickinson.

Maurice R. Hunke, Dickinson, for appellee and cross-appellant.

PAULSON, Justice.

This is a partial appeal from the judgment of the district court of Dunn County by Clifford L. Saby, individually, and as Personal Representative of the Estate of Lena Saby ("Clifford"). There is also a partial cross-appeal from this judgment by Ann G. Saby Liebelt ("Ann"). In addition there is a motion by Ann to dismiss Clifford's appeal as well as a motion to dismiss Ann's appeal. We affirm.

Lewis B. Saby, also known as L. B. Saby, and Lena Saby, also known as Lena H. Saby, were husband and wife and were the natural parents of their two children, Clifford and Ann, as well as the foster parents of Joyce Saby Kukla. Lewis B. Saby transferred all of his real and personal property to his wife Lena Saby, prior to his death in April of 1969. It was therefore not necessary to probate his estate.

Lena Saby re-acquired the ownership of a liquor establishment in the city of Killdeer in 1957 and continued to operate the business until August 1970. It was necessary for Lena Saby then to cease operating the bar business because of ill health.

Clifford was appointed Guardian of the person and the estate of Lena Saby on August 25, 1970, because of Lena Saby's ill health. Lena died on May 14, 1976, and Clifford was appointed Personal Representative of her estate by the Dunn County probate court in November of 1976. The petition for the appointment of Clifford as Guardian, as well as the petition for his appointment as Personal Representative of their mother's estate, was signed by Ann. Joyce Saby Kukla, the Sabys' foster child, was never formally adopted by them, nor is she a legal heir of either of them. She is not and never has been a party in this particular case.

When the guardianship was first commenced, Lena Saby was the owner of certain real and personal property in her individual name, as well as the owner of personal property in the joint names of Lena Saby or Clifford Saby. The property owned by Lena Saby individually at the commencement of the guardianship, was valued at $29,463.54; and the joint personal property at that same time was valued at $59,244.86. ¹

Clifford, as Guardian, expended the moneys pursuant to directives by the county judge from Lena Saby's individual accounts during the existence of the guardianship for the care of his mother. Thus, by the time of the filing of the Sixth Annual Report and Account, which occurred approximately three months before Lena Saby's death, the individual accounts had been exhausted. During that same period of time, the joint accounts, from which no moneys had been expended, increased in value from $59,244.86 to $82,755.02. ² The Final Report and Account in the guardianship and an Order Allowing the Final Report and Account and Final Discharge were entered, both of which were dated August 26, 1976.

After Lena Saby's death, Ann became aware of the fact that Clifford was claiming all of the remaining assets in the estate of their mother, because Clifford stated in a letter to Ann and Ben Liebelt ³ dated July 4, 1976, that the assets were in joint tenancy with the right of survivorship and, therefore, that there would be no other assets remaining in the estate for distribution. Ann then instituted an action against both the guardianship and the estate, in which action she asserted that she was entitled to her share in the remaining assets, primarily because of Clifford's conflict-of-interest status in his capacity both as a Guardian-beneficiary and as a Personal Representative-beneficiary; and that he violated his fiduciary obligation (1) by maintaining guardianship assets in joint tenancy with his ward, Lena Saby, and himself; and (2) by first exhausting Lena Saby's singly owned assets and by increasing the jointly owned assets (which would inure to his benefit).

The probate judge of Dunn County was disqualified and Burleigh County Judge Dennis A. Schneider presided at the hearings. Subsequent to the hearings, Judge Schneider held that the remaining joint assets in the guardianship and in the estate were not joint tenancy assets and that the assets should be equally divided between Ann and Clifford.

Clifford later submitted his Final Report and Account in the estate and appealed to the district court from the order approving the Final Report and Accounting and Petition for Distribution by the probate court of Dunn County dated September 27, 1977. ⁴

We shall first consider the issue raised by Ann's motion to dismiss Clifford's appeal or, in the alternative, to remand the same to the district court for further proceedings. Ann urges in support of her motion to dismiss that, pursuant to §§ 28-27-02 and 30-26-01 of the North Dakota Century Code, this court does not have jurisdiction of the appeal; that the jurisdiction is premature; and that the order and judgment entered by the district court of Dunn County does not affect the substantial rights of Clifford in his capacity as Personal Representative of Lena Saby's estate. Section 28-27-02, N.D.C.C., sets forth the orders which are appealable to the Supreme Court. Section 30-26-01, N.D.C.C., provides for appeal from a proceeding in county court to the district court. In support thereof, Ann cites In re Estate of Brudevig, 175 N.W.2d 574 (N.D.1970); and In re Johnson's Guardianship, 87 N.W.2d 50 (N.D.1957). See also In re Fettig's Estate, 129 N.W.2d 823 (N.D.1964); and In re Glavkee's Estate, 75 N.D. 118, 25 N.W.2d 925 (1947). A perusal of each of these cases reveals that they are distinguishable on their respective facts. It has been the general rule of this court to decide each case on its merits and not to dismiss on appeal on a technical ground or, in the alternative, to remand it for further proceedings to the district court or even to the probate court. To the extent that In re Brudevig, supra, is inconsistent herewith, it is hereby overruled. We determine that the motion to dismiss Clifford's appeal or, in the alternative, to remand the appeal to the district court for further proceedings be denied.

We are next confronted with the following issues:

(1) Are Ann's petitions barred by her failure to appeal from the guardianship orders, the order allowing the Final Report and Account and Final Discharge of the Guardian, thus preventing her from have re-tried matters considered and acted upon at the time the county court approved the Final Report and Account of the Guardian and the Order for Discharge?

(2) Did the district court err in determining that the savings account in the Bank of Killdeer and funds traceable therefrom was singly owned property of Lena Saby and was part of her estate after her death?

(3) Did the district court err in requiring Clifford to pay for attorneys fees subsequent to the June 9, 1977, hearing in the county court from his personal funds and not from the assets of Lena Saby's estate?

(4) Did the district court err in requiring Clifford to pay one-half of the cost of the transcript in county court and in refusing to grant Clifford's costs and disbursements in this action in district court against his sister Ann?

Clifford asserts that Ann's petition to vacate and set aside the Order Allowing the Final Report and Account and Final Discharge of the Guardian should be dismissed because Ann did not appeal from the Order Approving the Final Report and Account, as well as the Order for Final Discharge of the Guardian within the time for appeal prescribed by § 30-26-03, N.D.C.C.

Clifford buttresses his contention by citing § 30-10-05, N.D.C.C. This section of the code was not in effect at the time of the conclusion of the guardianship proceedings. However, the 1973 Legislature of this State enacted the Uniform Probate Code, which repealed Chapter 30-10 (which includes § 30-10-05), and the new probate code became effective on July 1, 1975. The guardianship for Lena terminated with her death in May 1976. The guardianship would thus be subject to the Uniform Probate Code from and after the effective date, that is, July 1, 1975, until the guardianship was terminated by a final discharge on August 26, 1976. Therefore, § 30-10-05, N.D.C.C., would not be controlling. Section 30.1-03-01 provides for the giving of notice and § 30.1-03-02 provides for waiver of notice. In the instant case, neither party has urged that a waiver of notice was executed by Ann either under the notice statutes in existence prior to July 1, 1975, or subsequent to the effective date of the Uniform Probate Code. Clifford's contention, therefore, is not persuasive.

Clifford further urges that since Ann did not appeal within the period prescribed by § 30-26-03, N.D.C.C., the statute on appeals from probate court, Ann is barred from any further action against the guardianship.

A review of the record reveals that while Ann was the petitioner for the appointment of Clifford as Guardian, at no time did she receive any notice of the hearings in the guardianship, which included six annual reports and accounts, the final report and account, and the final discharge of Clifford as Guardian. ⁵ Furthermore, Ann has commenced her actions against the guardianship and the estate within a reasonable time after she learned that her brother, Clifford, claimed all of the remaining assets in the guardianship and in the estate.

Ann counters by urging that it is unnecessary to pursue legal proceedings in the guardianship because the Guardian's disbursements of guardianship funds may be challenged in the estate proceedings and, further, that the final distribution in the guardianship...