Estate of Sorensen v. Sorensen

411 N.W.2d 362, 1987 N.D. LEXIS 385
CourtNorth Dakota Supreme Court
DecidedAugust 12, 1987
DocketCiv. 11277
StatusPublished
Cited by14 cases

This text of 411 N.W.2d 362 (Estate of Sorensen v. Sorensen) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Sorensen v. Sorensen, 411 N.W.2d 362, 1987 N.D. LEXIS 385 (N.D. 1987).

Opinions

ERICKSTAD, Chief Justice.

Duane Baehm appeals from the order entered by the Ward County Court on April 28,1986, denying his claim to be recognized as the only child of Soren Sorensen and sole legal heir to Soren’s estate. We affirm.

Soren Sorensen died intestate February 1, 1985. He is survived by three living brothers and the children of his five deceased sisters. He did not marry during his lifetime.

[363]*363Soren was born March 16, 1906, in Denmark. He was reared in Denmark and served in the Danish army. In 1928, he immigrated to North Dakota where he farmed and operated a meat market southeast of Minot before moving to Harrison Township, where he managed a dairy farm and meat market.

Arvilda Baehm and her three children, Vyonne, Sharon, and Roland, moved to the Sorensen farm during the spring of 1943. Fred Baehm, Arvilda’s husband and father of her three children, did not move with his family. At the farm, Arvilda did housework and prepared meals for Soren. She also performed miscellaneous duties in operation with Soren’s dairy farm and meat market. Arvilda did not receive a regular wage for her work; however, Soren regularly provided for the needs of Arvilda and her three children and occasionally gave to Arvilda modest amounts of cash. While living and working at the Sorensen farm, Arvilda had a separate bedroom from that of Soren.

On May 4, 1944, Arvilda gave birth to her fourth child, Duane. Duane’s birth certificate identifies Arvilda’s husband, Fred Baehm, as Duane’s father.

This appeal concerns Duane’s claim that he is the only child and thus sole heir of Soren.

On February 8, 1985, a “Petition for Adjudication of Intestacy and Appointment of Personal Representative” was filed by Svend Sorensen, Soren’s brother. On this date, the county court appointed Svend as special administrator.

On March 15,1985, Duane filed a petition objecting to the appointment of Svend as personal representative and also filed a “Petition for Determination of Heirship” with a demand for a jury trial. On April 4, 1985, the county court issued an order of intestacy designating First Western Bank of Minot as personal representative of Soren’s estate.

On June 24,1985, Svend and John Soren-sen, another brother of Soren’s, moved to strike the jury demand and for judgment on the pleadings arguing that the county court was without jurisdiction to consider an issue of paternity. On August 9, 1985, the county court issued an order determining that Duane was entitled to a hearing but was not entitled to a trial by jury.

At the hearing, Arvilda testified that Soren was Duane’s father. Duane testified under cross examination, however, that he and Soren both denied, under oath in an earlier child support proceeding against Duane, that they were father and son. No judicial determination to establish paternity was ever commenced prior to the death of Soren, nor did Soren acknowledge his paternity of Duane in any writing.

The county court found that Soren did provide the Baehm children with a home and the necessities of life, but did not openly hold out any of them as his natural children. The court acknowledged that there was testimony of isolated occasions when Soren either admitted or did not deny that Duane was his son; however, the court determined that these isolated occasions did not meet the requirements of Subsection 14-17-04(l)(d), N.D.C.C., of openly holding Duane out to be his natural child. The court concluded that Duane failed to prove that Soren received him into his home and openly held out Duane as his natural child by clear and convincing proof and ordered the estate to be distributed to Soren’s surviving family.

The following issues are raised:

I

Whether or not the county court has jurisdiction to determine a father and child relationship.

II

Whether or not the statute of limitations bars Duane’s petition to determine heir-ship.

III

Whether or not Duane established by clear and convincing proof that Soren was his natural father.

[364]*364IV

Whether or not Duane was entitled to a trial by jury on his petition to determine heirship.

Duane argues that he established by clear and convincing evidence that he was the son of Soren and that he was entitled to a trial by jury on this issue. Svend and John Sorensen respond that Duane was not entitled to a trial by jury on the issue of heirship because there was no right to a jury on this issue at the time of Soren’s death. They also argue that the county court does not have jurisdiction under the Uniform Parentage Act, Chapter 14-17, N.D.C.C., to determine a father and child relationship because such an action must be instituted in district court and if Duane were to bring a paternity action in district court it would be barred by a statute of limitations. Duane has not responded to these additional arguments.

The first issue is whether or not the county court has jurisdiction to determine the existence of a father and son relationship when such a determination is incidental and preliminary to determining heirship.

Svend and John argue that the county court does not have jurisdiction to ascertain paternity because pursuant to Section 30.1-04-09, N.D.C.C., such jurisdiction resides in the district court. Section 30.1-04-09 reads as follows:

“If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person:
“1. An adopted person is the child of an adopting parent and not of the natural parents, except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and either natural parent.
“2. In cases not covered by subsection 1, a person is the child of its parents regardless of the marital status of its parents and the parent and child relationship may be established under the Uniform Parentage Act.”

Section 14-17-07, N.D.C.C., of the Uniform Parentage Act provides that “[t]he district court has jurisdiction of an action brought under this chapter.”

Apparently, Svend and John believe that the district court pursuant to the aforementioned statutes has exclusive jurisdiction to establish a father and child relationship. We disagree.

Section 27-07.1-17(4), N.D.C.C., provides that the county court shall have jurisdiction in “[pjrobate, guardianship, and other testamentary cases pursuant to title 30.1.” Section 30.1-02-02, N.D.C.C., provides for subject matter jurisdiction of the county court as follows:

“1. The county court has jurisdiction over all subject matter relating to guardianship, probate, and testamentary matters, including:
“a. Estates of decedents, including construction of wills and determination of heirs and successors of decedents,
“b. Estates of protected persons.
“c. Protection of minors and incapacitated persons.
“d. Trusts, to the extent necessary for the exercise of the court’s jurisdiction over probate and testamentary matters.
“2.

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Estate of Sorensen v. Sorensen
411 N.W.2d 362 (North Dakota Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
411 N.W.2d 362, 1987 N.D. LEXIS 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-sorensen-v-sorensen-nd-1987.