Quandee v. Skene
| Decision Date | 01 July 1982 |
| Docket Number | No. 10166,10166 |
| Citation | 321 N.W.2d 91 |
| Parties | Mary Louise Skene QUANDEE, Plaintiff and Appellant, v. George Wilson SKENE, Defendant and Appellee. Civ. |
| Court | North Dakota Supreme Court |
Caldis & Arneson, Grand Forks, for plaintiff and appellant; argued by Gordon Caldis, Grand Forks.
Price & LaQua, Langdon, for defendant and appellee; argued by Robert Q. Price, Langdon.
This is an appeal by the plaintiff, Mary Louise Skene Quandee (Mary), from a district court judgment entered after a bench trial which dismissed her complaint against the defendant, George Wilson Skene (George), her brother.
On 6 July 1965 Elmer J. Skene (Elmer) and Minnie Skene (Minnie), husband and wife, executed a joint will devising and bequeathing to each other all of their property, real and personal, for the lifetime of the survivor, and, on the death of the survivor, devising certain real property to their only children, George and Mary. A residuary clause in the joint will provided the residue of the estate, after appraisal of the real estate, was to be distributed by the executor "in the proportions necessary to make the distribution as equal as possible." 1
On 15 September 1967 Elmer executed a general power of attorney appointing George as his attorney-in-fact to manage his business and financial affairs. George apparently did not exercise the power until 1971 except to provide assistance in selling a house in Hannah, North Dakota.
On 1 January 1971 Minnie died and her estate, including the land described in the joint will, was passed to Elmer without restriction or limitation by final decree of the Cavalier County Court.
In December 1971 George informed Elmer that an attorney had advised George that Elmer's estate tax could be reduced if he (Elmer) made gifts of some of his assets during his lifetime. On 4 August 1972 Elmer personally signed individual checks for George, Marguerite Skene (George's wife), Mary, and W. B. Quandee (Mary's husband). The checks made out separately to George and Mary were for the amount of $18,000 each. The checks made out separately to Marguerite and W. B. Quandee were for the amount of $3,000 each. The record reflects that in 1973, 1975, and 1976 George wrote and signed checks through his power of attorney for Elmer making gifts to George and Mary and their respective spouses. The total amount of the gifts to George and his wife was $33,000, and the total amount of the gifts to Mary and her husband was $33,000.
On 4 April 1978 Elmer died at a nursing home in New Rockford, North Dakota. George was the sole executor of his estate, and during probate proceedings Mary learned the real property devised to George by Elmer's and Minnie's joint will had an appraised value of $69,595.00 more than the appraised value of the land devised to her. Further, Mary learned that the gifts to George, herself, and their spouses, had depleted Elmer's assets so that there was no money left in Elmer's estate to equalize the distribution of assets which she believed was required by the residuary clause of the joint will.
Mary then instituted the present action seeking an accounting for all money and property received by George from Elmer's estate by gift, joint tenancy arrangement, or otherwise and that she recover the amount of the gifts received by George because the gifts allegedly were made by Elmer as a result of George's undue influence and advice. Mary further alleged that George knew the appraised value of the real property he received under the will was of greater value than that received by Mary, and that George unduly exercised his influence as attorney-in-fact to defeat the provisions of the residuary clause of the joint will and appropriate for his own funds money which would have passed to Mary through the residuary clause.
After a bench trial the district court entered judgment in which it held that the residuary clause referred to only the assets remaining in the estate after the distribution of the specific devises and that the gifts to George did not contravene the residuary clause. The district court also found that George had overcome any presumption of undue influence arising from the relationship between Elmer and himself. Mary appealed to this court.
Mary asserted that the joint will provided for an estate plan of Elmer and Minnie which was circumvented. She contended that equal treatment of herself and George was an integral part of the estate plan expressed in the joint will, and that George's actions during Elmer's lifetime and under a power of attorney, in essence, defeated the estate plan he was obligated to follow.
Mary asserted the joint will provided that after an appraisal of the bequested real property was made, the residue of the estate was to be divided in such a manner between her and George so the total bequest to each would be as nearly as possible equal in dollar value.
Our analysis of the issues raised by Mary requires us to initially consider her claim that George exercised undue influence over Elmer or that there was fraud or a violation of a fiduciary relationship.
The district court, in its memorandum opinion, found there was "neither undue influence exercised by George over Elmer nor was there fraud or violation of a fiduciary relationship," and further if a presumption of undue influence did exist, that presumption of undue influence was overcome by strong contrary evidence. The district court's conclusions of law provided:
"Any presumption of undue influence arising from the relationship of Principal and Agent, or Father and Son, between Elmer G. Skene and George Wilson Skene, has been overcome by the evidence before the Court."
Whether a particular determination is a finding of fact or conclusion of law is to be determined by the reviewing court, and labels used by the trial court are not conclusive. Ferguson v. Ferguson, 202 N.W.2d 760 (N.D.1972). Fraud and undue influence are questions of fact to which the "clearly erroneous" standard of Rule 52(a), North Dakota Rules of Civil Procedure, applies. See, e.g., Woodbury v. Pfliiger, 309 N.W.2d 104 (N.D.1981). After applying Rule 52(a), N.D.R.Civ.P., to the findings of fact necessary to reach the conclusion in the instant case, we cannot say that the trial court's finding that there was no undue influence or fraud is clearly erroneous.
To resolve the issues raised by Mary, including the assertions of undue influence and fraud, we must examine the relevant portions of the joint will of Elmer and Minnie. The joint will provides, in relevant part, as follows:
(A) To our beloved son, George Wilson Skene, we give, devise and bequeath the Southeast Quarter (SE 1/4) and the East Half of the Southwest Quarter (E 1/2 SW 1/4) Section Two (2), the Northeast Quarter (NE 1/4) and the East Half of the Northwest Quarter (E 1/2 NW 1/4) Section Eleven (11), All in Township One Hundred Sixty-three (163), Range Sixty-three (63). We also give to our beloved son, George Wilson Skene, all motor and shop tools which we may own at the time of our death.
(B) To our beloved daughter, Mary Louise Skene Quandee, we give, devise and bequeath the Southwest Quarter (SW 1/4) Section Thirteen (13), Township One Hundred Sixty-three (163), Range Sixty-three (63), the West Half (W 1/2) of Section Seventeen (17) and the Southeast Quarter of the Southeast Quarter (SE 1/4 SE 1/4) Section Seven (7), Township One Hundred Sixty-three (163), Range Sixty-two (62), and our home in Hannah, North Dakota, and all contents therein.
(C) All the rest and residue of our property, we give, devise and bequeath to our beloved children in the following proportions:
It is our intention and direction that our property except for the undivided bequests, be divided as closely as possible to equal between our beloved children, George Wilson Skene and Mary Louise Skene Quandee and therefore we direct that the residue of our property upon the death of the survivor of us be distributed to our above referred to children after appraisal of the real estate in order that our executor may distribute the residue in the proportions necessary to make the distribution as equal as possible."
The court's purpose in construing a will is to ascertain the intention of the testator as it appears from a full and complete consideration of the will in light of the surrounding circumstances. Hitz v. Estate of Magdalena Hitz, 319 N.W.2d 137 (N.D.1982); McGuire v. Gaffney, 314 N.W.2d 851 (N.D.1982). See NDCC Sec. 30.1-09-03. It necessarily follows that in construing a will each word, clause, and provision of the instrument should, if possible, be given effect. 80 Am.Jur.2d Wills Sec. 1135, p. 245. The above cited section of Am.Jur.2d provides as follows:
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