910 N.W.2d 856
N.D.2018Background
- Sidney Solberg died in 1965; a 1965 probate decree distributed 100 mineral acres and certain real property (the “option property”) to his wife Lillian for life, with remainder to the four children (including Glenn Solberg).
- Lillian later married Lyle Nelson. In 1985 Lillian executed a will devising “one hundred (100) mineral acres” to Glenn; in 1997 she executed a codicil allegedly granting Glenn a right of first refusal on the option property. At all relevant times Lillian’s interest in both was a life estate.
- Lillian died in 2003; Glenn did not challenge her estate and later received 25 mineral acres under her will.
- Glenn sued the estate of Lyle Nelson seeking ownership of the 100 mineral acres and enforcement of the purchase option in Lillian’s codicil, claiming those interests should pass through Lillian’s testamentary provisions to him.
- The district court dismissed Glenn’s claims (N.D.R.Civ.P. 12(b)(6)) because Lyle Nelson never held an interest in the disputed property and because any attack on the 1965 probate distribution was untimely; this Court affirmed on remand and awarded double costs and fees for a frivolous appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lillian’s will/codicil could transfer the 100 mineral acres or create an enforceable option beyond her life estate | Glenn: the will devised 100 mineral acres to him; the codicil created a right of first refusal enforceable against the estate | Estate: Lillian only held a life estate; she could not convey remainder or bind future owners; Lyle never held the property | Held: Invalid as to property beyond Lillian’s life; life tenant cannot defeat remaindermen’s rights; dismissal affirmed |
| Whether the disputed property was part of Lyle Nelson’s estate | Glenn: the devise/codicil made the property subject to Lyle’s estate | Estate: Lyle never owned or controlled the mineral acres or option property; they passed to Lillian’s remaindermen on her death | Held: Lyle and his estate never had an interest; court correctly dismissed claims against Lyle’s estate |
| Whether Glenn could challenge the 1965 final decree of distribution of Sidney’s estate | Glenn: the will was misconstrued; minerals intended to pass in fee simple to Lillian | Estate: the 1965 decree is final; time to attack it has long passed | Held: Time to challenge the 1965 decree expired; collateral attack barred |
| Whether the appeal was frivolous and merits an award of fees under N.D.R.App.P. 38 | N/A (plaintiff appealed) | Estate: appeal is frivolous; requests double costs and attorney fees | Held: Appeal is frivolous; awarded double costs and attorney fees of $500 |
Key Cases Cited
- Schroeder v. Buchholz, 622 N.W.2d 202 (N.D. 2001) (life tenant entitled to possession/use but cannot defeat remaindermen’s rights)
- Matter of Bradley K. Brakke Trust, 890 N.W.2d 549 (N.D. 2017) (same principle regarding life tenants and limitations on alienation)
- Baukol-Noonan, Inc. v. Bargmann, 283 N.W.2d 158 (N.D. 1979) (failure to timely appeal final decree bars later attack on probate distribution)
- United Bank of Bismarck v. Young, 401 N.W.2d 517 (N.D. 1987) (standards for awarding fees under Rule 38 for frivolous appeals)
- Podrygula v. Bray, 856 N.W.2d 791 (N.D. 2014) (discussion of Rule 38 authority and standards for frivolous-appeal sanctions)