Chaussee v. Thiel

520 N.W.2d 789, 1994 N.D. LEXIS 186, 1994 WL 458349

• Court: North Dakota Supreme Court
• Decided: August 24, 1994
• Docket: Civ. 930225
• Status: Published

Opinions

NEUMANN, Justice.

William Chaussee, as conservator of Toby Ramsland, has appealed a district court judgment entered in his action to set aside deeds conveying interests in real property to Elvira Thiel; for the return of other property to Toby Ramsland; for payment to Toby of the proceeds of any lease or sale of farmland by Thiel; and for damages, costs, disbursements, and attorney fees from Thiel and Lester Sehirado. We affirm and remand with directions.

On July 27, 1989, Ole Ramsland died testate, leaving all of his property, which included 800 acres of farmland, a house, a mobile home, and three lots in Almont, to his only surviving brother, Toby Ramsland. Ole’s will appointed Toby as the personal representative of the estate. On August 2, 1989, Toby, with the assistance of his attorney, Lester Sehirado, was issued letters testamentary appointing him personal representative of the Ole Ramsland Estate. Toby also executed that day a durable power of attorney naming Elvira Ramsland Thiel, a second cousin who often provided him with transportation and other assistance, as his attorney-in-fact to assist him in carrying out his duties and responsibilities as personal representative of the Ole Ramsland Estate.

On September 18, 1989, Toby requested Sehirado to prepare an instrument transferring a mobile home from the Ole Ramsland Estate to Thiel. On that same day, Sehirado prepared and Toby executed a personal representative’s deed of distribution conveying to Thiel the following:

“... certain real property hereinafter described from the estate of said decedent:

“A 1968 Detroiter mobile home, Serial No. DM 6905, situated on Lots Four (4), Five (5), and Six (6) in Block Ten (10) in Filkins First Addition to the City of Almont, North Dakota.”

On June 6, 1990, Toby again visited Sehirado and executed a renunciation of his interest in the farmland in the Ole Ramsland Estate and executed a personal representative’s deed conveying the farmland in the Ole Ramsland Estate to Thiel.¹

On September 12, 1991, the Morton County Court appointed Chaussee as conservator of Toby’s property. In December 1991, Chaussee commenced this action against Thiel and Sehirado. Thiel and Sehirado answered the complaint. In addition, Sehirado counterclaimed for libel. Trial of the action resulted in a judgment decreeing that Chaus-see had abandoned his allegations of fraud; setting aside the personal representative’s September 18, 1989, deed of distribution, on the ground that the parties had operated under the mutual mistake of fact that the mobile home was not permanently attached to the real estate and that Toby executed the deed under the mistake of law that he was gifting the mobile home to Thiel without any associated real estate; upholding the June 6, 1990, personal representative’s deed conveying the farmland to Thiel, subject to reimbursement to Toby for taxes he had paid after June 6, 1990; dismissing Schirado’s counterclaim; and awarding Chaussee costs and disbursements against Sehirado in the amount of $557.25.

Among the trial court’s findings of fact are the following:

“4. Toby Ramsland has developed and attached special significance to his military service and the veterans benefits he earned as a result thereof. It is clear that the transfer of title from Toby Ramsland, Ben Ramsland and Fred Ramsland to Ole Ramsland, as occurring on July 24, 1978, served two fundamental purposes. The first to allow Ole Ramsland to be the unofficial business manager of the Ramsland family farm and secondly to allow Toby Ramsland to continue to receive his veterans benefits pension.

⅜ ‡ ⅜: ⅜ ⅜ ¾:

“10. Toby Ramsland was born on March 10, 1907. He graduated from high school, attended college and thereafter became a school teacher prior to serving in the United States Armed Forces and ultimately returning to join in the operation of the Ramsland family farm. Toby Rams-land is considered to be an intelligent and well read man, capable of making his independent decisions concerning his own business affairs. During Toby Ramsland’s joint residency with Ole Ramsland, Ole Ramsland did perform many of the business tasks associated with the operation of the Ramsland family farm, but did so only after discussions between Ole Ramsland and Toby Ramsland. On August 2, 1989, at the age of 82 years, Toby Ramsland was considered by all to be fully capable of conducting his personal and business affairs with knowledge and understanding of his actions.

⅜ ⅜ ⅜ ⅜: ⅜ ⅜

“12. Toby Ramsland was no more dependent upon Defendant Schirado than any other client. Toby Ramsland specifically requested Defendant Schirado to prepare each of the deeds which are the subject matter of this action, absent any undue influence by Defendant Schirado.

“13. At the time of trial Toby Rams-land continues to have full capacity to understand the contents of each of said deeds. Even though Toby Ramsland now testifies that it is not now his intention to gift said property to Defendant Thiel, it is clear that on each of September 18, 1989, and June 6, 1990, Toby Ramsland understood the contents of each of said deeds, requested preparation of the same and did execute each of said deed freely, knowingly and voluntary.

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“18. The evidence before the Court herein demonstrates that on each of September 18, 1989, and June 6, 1990, Toby Ramsland as personal representative of the estate of Ole Ramsland, was competent to act in that capacity, and that his execution of each of said personal representative’s deeds was a free and knowing act by Toby Ramsland, absent any exercise of undue influence by either the Defendant Thiel or the Defendant Schirado.”

Chaussee asserts that findings 10, 12, 13, and 18 are clearly erroneous or inconsistent with other findings.

Our review of findings of fact is limited by Rule 52(a), N.D.R.Civ.P. In reviewing findings of fact, the evidence must be viewed in the light most favorable to the findings. Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334 (N.D.1983). Findings of fact are presumptively correct. Dschaak v. Dschaak, 479 N.W.2d 484 (N.D.1992); Alumni Ass’n of Univ. v. Hart Agency, Inc., 283 N.W.2d 119 (N.D.1979). A party challenging a finding of fact on appeal bears the burden of demonstrating that the finding is clearly erroneous. Dick v. Dick, 414 N.W.2d 288 (N.D.1987); Routledge v. Routledge, 377 N.W.2d 542 (N.D.1985). A finding of fact is clearly erroneous only when the reviewing court, upon review of the entire evidence, is left with a definite and firm conviction that a mistake has been made. Dick v. Dick, supra. “We will not determine that the district court’s findings are clearly erroneous merely because we may have viewed the facts differently had we been the trier of fact.” Giese v. Morton County, 464 N.W.2d 202, 203 (N.D. 1990). A choice between two permissible views of the evidence is not clearly erroneous. Gillmore v. Morelli, 472 N.W.2d 738 (N.D.1991).

No productive purpose would be served by detailing all of the evidence supporting the challenged findings of fact. Toby was proud of his military service. Toby attached a special significance to his veteran’s pension and its continued receipt was very important to him. Retention of the farmland received under Ole’s will would have resulted in the termination of Toby’s veteran’s pension under 38 U.S.C.A. §§ 1521, 1522. 38 U.S.C.A. § 1521 provides that a veteran’s pension shall be “reduced by the amount of the veteran’s annual income.” Such a dollar-for-dollar reduction due to income from the farmland would have terminated Toby’s veteran’s pension. 38 U.S.C.A. § 1522(a) provides:

“The Secretary shall deny or discontinue the payment of pension to a veteran under section 1521 of this title when the corpus of the estate of the veteran or, if the veteran has a spouse, the corpus of the estates of the veteran and of the veteran’s spouse is such that under all the circumstances, including consideration of the annual income of the veteran, the veteran’s spouse, and the veteran’s children, it is reasonable that some part of the corpus of such estates be consumed for the veteran’s maintenance.”

The evidence presented at trial indicated that Toby’s receipt of farmland valued at $100,000 .or more at the age of 82, with no spouse or children, would almost certainly have resulted in termination of his veteran’s pension. Toby had in the past avoided termination of his pension upon receiving an interest in the farmland upon the death of a brother by conveying his interest away. Toby’s actions in this case were consistent with his past practice of retaining his pension by conveying away any interest he received in the farmland. Our review of the entire evidence has not left us with a definite and firm conviction that a mistake has been made. The trial court’s findings of fact are, therefore, not clearly erroneous. We also do not find any fatal inconsistencies in the findings.

Chaussee argues that the trial court’s findings are unclear on the issue of undue influence and incomplete as to other matters. With regard to undue influence, Chaussee argues:

“At its finding No 18 and also at finding No. 12, the Trial Court states its finding and then ends with the strange and cryptic language, ‘... absent any exercise of undue influence by either Defendant Thiel or the Defendant Schirado.’, at No. 18, and:

... absent any undue influence by Defendant Schirado.’ at finding No. 12. What does this language mean?

“That the prior statements are true if there is no undue influence? Or that the prior statements are true because there is no undue influence? ... The phrases certainly are not cleareut and forthright findings that there was no undue influence.”

Upon viewing the evidence in the light most favorable to the trial court’s findings of fact and considering all of the findings and conclusions together, it appears to us that the trial court found that there was no undue influence exercised upon Toby by either Thiel or Schirado.

Chaussee contends that the trial court erred in concluding that he abandoned his fraud claims and erred in failing to make findings and conclusions on his allegations of constructive fraud against Thiel. Chaussee has not drawn our attention to anything in the record that compels the conclusion that the trial court erred. All that has been shown is that Chaussee and the trial court had different views of the case. It is inconceivable that the trial court, which found that there was no undue influence exercised by Thiel and found that there was no evidence of a mutual mistake of fact or law, could be persuaded on this record that there was, nevertheless, constructive fraud. We will, therefore, not remand for further findings regarding Chaussee’s claim of fraud.

We have considered the other issues raised by Chaussee and have determined that they are without merit. Chaussee and the trial court viewed the evidence very differently. From our review of the record, we have not been left with a definite and firm conviction that a mistake has been made with regard to the findings of fact, which are, therefore, not clearly erroneous, and we have not been persuaded that the trial court committed any reversible errors of law.

We are, however, concerned about what will happen if Toby suffers a loss in income, such as the possible loss of his veteran’s pension. As the trial court specifically determined with regard to Toby’s gift of the farmland to Elvira:

“Toby Ramsland’s motivation to make said gifts was to preserve his status as a recipient of his veteran’s benefit pension. Toby Ramsland further believed that the Defendant Thiel would provide for Toby Ramsland for the rest of his life, much as his brother had previously.”

There is no formal security for Toby’s belief that Elvira would provide for him for the rest of his life. Although not cited by the parties in this appeal,² the imposition of a trust in the income from the farmland during Toby’s lifetime under §§ 59-01-05,³ and 59-01-06,⁴ N.D.C.C., or the imposition of such a trust to take effect if the need for one should arise due to a change in Toby’s income, might be appropriate. Such a trust in the income from the farmland during Toby’s lifetime would give Elvira the land and its income after Toby’s death, as Toby wished, would secure Toby’s expectation that Elvira would provide for him for the rest of his life, and fulfill Elvira’s promise to give Toby “enough money.”

The judgment is affirmed and the matter is remanded to the trial court with directions to stay the judgment until the trial court has determined whether or under what conditions to impose an implied trust on the income from the farmland during Toby’s lifetime. We express no view on the merits of the issue.

VANDE WALLE, C.J., and LEVINE and SANDSTROM, JJ., concur.

1 . We note that personal representatives normally do not have authority to make gifts of estate assets. See § 30.1-18-15(6), N.D.C.C., (personal representatives may dispose of assets "for cash or on credit") and § 30.1-18-15(23), N.D.C.C., (personal representatives may sell any property of the estate "for cash, credit, or for part cash and part credit"). Here, however, there were no creditors or heirs other than Toby to object, and the issue was not raised below or on appeal.

2 .We “conduct appellate review ‘in light of all relevant precedents, not simply those cited to or discovered by the district court.' " State v. Larsen, 515 N.W.2d 178, 182 (N.D.1994), quoting Elder v. Holloway, 510 U.S.-,-, 114 S.Ct. 1019, 1021, 127 L.Ed.2d 344, 348 (1994).

3 . Section 59-01-05, N.D.C.C., provides:

"59-01-05. Implied trust — Definition. An implied trust is one which is created by operation by law.”

4 . Section 59-01-06, N.D.C.C., provides:

"59-01-06. Implied trust — How created. An implied trust arises in the following cases:

"1. One who wrongfully detains a thing is an implied trustee thereof for the benefit of the owner.

"2. One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he has some other and better right thereto, an implied trustee of the thing gained for the benefit of the person who would otherwise have had it.

"3. Each one to whom properly is transferred in violation of a trust holds the same as an implied trustee under such trust, unless he purchased it in good faith and for a valuable consideration.

“4. When a transfer of real property is made to one person and the consideration therefor is paid by or for another, a trust is presumed to result in favor of the person by or for whom such payment is made.”