Zimmerman v. Kitzan

• Decision Date: 24 July 1954
• Docket Number: No. 7407,7407
• Citation: 65 N.W.2d 462
• Parties: ZIMMERMAN et al. v. KITZAN et al.
• Court: North Dakota Supreme Court

Page 462

65 N.W.2d 462

ZIMMERMAN et al. v. KITZAN et al.

No. 7407.

Supreme Court of North Dakota.

July 24, 1954.

Rehearing Denied Aug. 25, 1954.

Syllabus by the Court.

1. As a general rule actual fraud cannot be presumed but must be proved affirmatively by the one who relies upon it.

2. Fraud does not exist as a matter of fact when intent to deceive does not exist. It is the action of the mind which gives fraud its existence.

3. Courts look with favor upon family agreements in settlement of estates when free from fraud and misrepresentations.

4. The carrying out of an evident desire of a decedent regarding the distribution of his estate and the avoidance of future trouble concerning such distribution are sufficient consideration for a family agreement on the distribution of an estate.

5. Evidence considered and held to support the findings of the trial court in favor of the defendants.

J. K. Murray, Bismarck, for appellants.

Milton K. Higgins, Bismarck, for respondents.

GRIMSON, Judge.

The plaintiffs allege for their first cause of action that Solomena Zimmerman is the owner of certain real estate in Morton County, North Dakota; that the defendants claim certain estates or interests therein. They ask that title be quieted in Solomena against such claims. For a second cause of action they allege that plaintiff, Solomena Zimmerman, is the widow of Gottlieb Zimmerman and the owner of said real estate by virtue of being his only surviving heir; that John F. Schneider is the duly appointed and qualified administrator of Gottlieb Zimmerman's estate and is entitled to the possession of all of Gottlieb's property, including some personal property set out in the complaint. Then it is alleged that at the commencement of the probating of the estate the defendant, Emma Kitzan, represented that she was the surviving daughter of Gottlieb Zimmerman and had a right to select an administrator and did so select the defendant, Christ Kitzan, to act as co-administrator. It is further alleged that at the time of the commencement of such proceedings Emma Kitzan's attorney, Kurt Krauth made false and fraudulent representations that the other defendants were entitled to inherit certain portions of the property of Gottlieb Zimmerman and thereby induced the plaintiff, Solomena, to enter into a family contract for the distribution of the estate; that Solomena, upon learning the falsity of said representations and of her legal rights rescinded said contract and the plaintiffs ask that said contract be cancelled.

The defendants answer making a general denial and set up the circumstances leading to the execution of the contract in question claiming that it is valid and binding. Defendants pray that the contract be declared valid and binding and title be quieted in the parties and they be given possession in accordance therewith.

Plaintiffs reply by a denial and a claim that the county court has found said contract void. The validity of the contract was the sole issue presented on the trial.

The action was commenced March 25, 1946. The case was first tried before Hon. J. O. Wigen. It was submitted to a jury who found for the defendants. Judge Wigen treated their verdict as advisory only but in a memorandum decision the court approved such finding. The plaintiffs made a motion for a new trial which was granted. Defendants appealed from the order granting a new trial. On that appeal the order for a new trial was affirmed in Zimmerman v. Kitzan, 77 N.D. 477, 43 N.W.2d 822. The defendants then moved the court to vacate the order for a new trial which motion the district court granted. Thereupon plaintiffs appealed. This court reversed that order, Zimmerman v. Kitzan, N.D., 56 N.W.2d 208. The case then came on for a new trial before Hon. Harvey J. Miller, without a jury, April 8, 1953. Judge Miller found for the defendants and this appeal is from a judgment in their favor. A trial de novo is demanded.

The evidence shows that in 1899 Gottlieb and his first wife, Elizabeth, came from Russia and settled south of Hebron in Morton County where they lived until Elizabeth's death in 1939. They accumulated some property. They had no children. Before they left Russia, Gottlieb's sister had given birth to a daughter, Emma, who was being raised by her grandfather. After Gottlieb and his wife had become settled, correspondence was had by Elizabeth, writing for herself and Gottlieb to Emma's mother in Russia. Because they had no children they asked that Emma be sent to them. An agreement was reached that Emma should come to America and be raised by Gottlieb and his wife. It is claimed that the agreement included a promise that she would be adopted by Gottlieb. Emma came to the United States with some other relatives when she was 12 years of age; Gottlieb paid her fare. Thereafter she lived with Gottlieb and his wife as a daughter until she was married to the defendant, Christ Kitzan, when she was 18 years of age. Elizabeth Zimmerman died in 1939 and in 1941 Gottlieb married Solmena, a widow, who at that time was 62 years of age and the mother of 13 children. She had lived at Anamoose, North Dakota. They lived together in Hebron until Gottlieb died July 12, 1945. Two years after this second marriage Gottlieb had prepared and signed deeds and a bill of sale conveying his property to his wife, Solomena, and to Emma and to her children, Walter, Hilda, and Florence. With these instruments he signed a letter of direction addressed to John F. Schneider, instructing him to keep the instruments therein enclosed until Gottlieb's death and then to deliver them to the grantees named in said instruments. Before Gottlieb went to the hospital he gave Solomena the key to a locked iron box he kept in his trunk in his bedroom. Shortly after his death the Kitzans arranged a meeting of all the interested parties and Mr. Schneider at the law office of Kurt Krauth in Hebron.

John F. Schneider brought the iron box. It was opened at this meeting and the instruments aforementioned were found. No delivery of them had been made to Mr. Schneider during Mr. Zimmerman's lifetime. A conference ensued at which these instruments and the distribution of the estate were discussed. The conclusion was reached that Gottlieb's intention as to the disposition of his estate should be carried out and Krauth was engaged to draw up an agreement to that effect and to start probate proceedings. Mr. Krauth drew up such a contract, dated July 30, 1945. It was signed by Solomena, as the widow, and Emma Kitzan, as the daughter, as the heirs-at-law. John F. Schneider, the friend and advisor of Solomena, and Christ Kitzan, the husband of Emma, the alleged daughter, were then, on the petition of Solomena and Emma, appointed administrators of the estate. In November of 1945 a disagreement arose between the administrators over Mr. Schneider's bill against the estate. Schneider then consulted attorneys. On Nov. 15, 1945, Solomena had a notice of rescission of the contract of July 30, 1945, served on all the parties. Soon thereafter this action was commenced.

The plaintiff, Solomena, contends that as the widow and sole heir of Gottlieb Zimmerman, she is the owner of all the estate; that the contract made in Mr. Krauth's office was procured by fraud and without any consideration, and consequently is invalid.

The defendants contend that there was no fraud in connection with the execution of the family contract and that it is valid. They claim ownership of Gottlieb's property as therein provided.

Plaintiffs rely on two representations claimed to have been made by Mr. Krauth, the attorney, as fraudulent. The claim, first, that he represented in the conference after the box was opened, that the deeds and instruments there found were legal and binding, and, second, that he represented that Emma was the daughter of Gottlieb Zimmerman and entitled to inherit one-half of the estate. They claim both these representations were false. They further contend they thought Mr. Krauth was their attorney and that they relied on him and agreed to everything he advised.

The evidence shows that the deeds, bill of sale and escrow letter were prepared on July 20, 1943 by Mr. Krauth for Gottlieb Zimmerman, and on his instructions. Gottlieb had told John F. Schneider about these instruments and some of the family had some knowledge of Gottlieb's intention to divide up his estate. A few days after his death some of the defendants had talks with Mr. Krauth regarding the estate. The meeting followed.

All the parties were German and the conversation was partly in German and partly in English. Mr. Krauth testifies that he read the papers in English and explained them to the parties in German. He says he told them that these deeds and instruments were invalid because they had not been delivered to Mr. Schneider before Gottlieb's death. In that he is corroborated by three witnesses. That is disputed by the plaintiffs although Mr. Schneider at one time in his testimony said he thought they were good but that Krauth did not tell him so. They now claim that Krauth told them the deeds were valid and that partly for this reason Solomena signed the contract. After discussion of the matter, the parties agreed to follow out Gottlieb's intentions and divide the property. They engaged Krauth to draw the agreement and to start the probate proceedings.

At that meeting after the agreement was reached, Mr. Krauth drew up the petition for administration and it was signed by Solomena and Emma. Later Mr. Krauth drew up the contract and took it to Solomena for signature. She would not sign before a conference with Mr. Schneider so they both went to Mr. Schneider's home. There Mr. Krauth says he again read the contract in English and explained it to Solomena in German. After some discussion Mr. Schneider advised Solomena to sign the contract, saying that it was in accordance with the agreement.

It is evident that if Mr. Krauth had...