*1 CHAUSSEE, as Conservator William Ramsland, Plaintiff
fоr Appellant, Mary Schirado, THIEL and A. aka Schirado, Represen- as Personal
Allison Schirado, the Estate of Lester
tative for Appellees.
Defendants and
Civ. No. 930225.
Supreme of North Dakota. Court
Aug. 1994. Engel (argued), of &
Austin G. Webster Bismarck, plaintiff appellant. Engel, for Mandan, Benjamin (argued), C. Pulkrabek appellee Elvira Thiel. for defendant and (argued), Tschider & O. Smith Sean Bismarck, Smith, appellee for defendant and Mary A. Schirado.
NEUMANN, Justice. Chaussee, as conservator William judg- appealed court has a district to set aside deeds ment entered his action property to Elvira conveying interests in real Thiel; property to for the return of other Ramsland; payment to *2 790 and Thiel and an- or sale of farmland Thiel Sehirado. Sehirado
proceeds of lease addition, costs, complaint. In Thiel; damages, disburse- swered the Sehirado and ments, for libel. Trial of the action attorney from Thiel and counterclaimed and fees judgment decreeing resulted in a that Chaus- affirm and remand We Lester Sehirado. fraud; allegations of see had abandoned his with directions. setting personal representative’s aside the 27, 1989, July Ramsland died tes- Ole On 18, 1989, distributiоn, September deed of on tate, leaving property, of his which includ- all ground parties operated the the farmland, house, of a mobile ed 800 acres under the mutual mistake of fact that the home, Almont, only in to and three lots permanently mobile home was not attached brother, Toby surviving Ramsland. Ole’s Toby to the real estate and that executed the personal repre- appointed as the deed under the mistake of law that he was 2, 1989, sentative of the estate. On gifting the mobile home to Thiel without attorney, the assistance with 6, estate; upholding associated real the June Sehirado, Lester was issued letters testa- representative’s convey- personal deed mentary appointing personal representa- him Thiel, subject ing farmland to to reim- Toby also tive of the Ole Ramsland Estate. paid bursement for taxes he had day power executed that a durable of attor- 6, 1990; dismissing after June Schirado’s ney naming Elvira Ramsland a second counterclaim; awarding and Chaussee cоsts provided transpor- him cousin who often with against in and disbursements Sehirado assistance, attorney- tation and other as his amount of $557.25. carrying him in in-fact to assist out his duties responsibilities personal representa- and as Among court’s of fact are tive of the Ole Ramsland Estate. following: developed “4. Ramsland has and 18, 1989, Toby September requested
On special significance military attached to his prepare an instrument transfer- Sehirado service and the veterans benefits he ring a mobile home frоm the Ole Ramsland earned as result thereof. It is clear that day, to Thiel. that same Estate On Sehirado Ramsland, the transfer of title from prepared personal rep- and executed a Ben Ramsland and Fred Ramsland to Ole conveying resentative’s deed of distribution Ramsland, 24, 1978, occurring July on following: to Thiel the purposes. served two fundamental “... real certain hereinafter de- first to allow Ole Ramsland to be the unof- scribed from the estate of said decedent: manager ficial business of the Ramslаnd home, “A 1968 Detroiter mobile Serial family secondly farm and to allow (4), No. DM on Four situated Lots Ramsland to continue receive his veter- (6) (10) (5), Five in in Six Block Ten ans benefits City Filkins First Addition to the of Almont, North Dakota.” n n : n n ‡ ¾: 6, 1990, Toby again On June visited Sehirado “10. on was born and executed a renunciation of his interest in graduated high March 1907. He from in the farmland the Ole Ramsland Estate and school, college attended and thereafter be- personal representative’s executed a deed prior serving came a schoоl teacher conveying the Ole Ramsland the United ulti- States Armed Forces and Estate to Thiel.1 mately returning join operation On the Morton Coun- the Ramsland farm. Rams- ty appointed intelligent Court Chaussee as conservator land is considered be man, Toby’s property. In capable making December well read his inde- against pendent concerning Chaussee commenced this action decisions his own busi- personal representatives normally (personal representatives may any property 1. We note that sell cash, credit, authority gifts part do not have to make of estate of the estate "for or for cash 30.1-18-15(6), N.D.C.C., credit"). Here, however, (personal part § assets. See there were no representatives may dispose object, of assets "for cash creditors or heirs other than credit") N.D.C.C., 30.1-18-15(23), § appeal. or on was not raised or the issue below on
791
findings. Layman
During Toby
Braunschweigische
Ramsland’s
affairs.
ness
Maschinenbauanstalt,
Inc.,
joint residency
Ole
Ole
N.W.2d
(N.D.1983).
many
Findings
presump-
of fact are
perform
of the busi-
Ramsland did
Dschaak,
tively correct. Dschaak v.
operation
ness tasks associated with
*3
(N.D.1992);
farm,
only
484
Alumni Ass’n
but did so
N.W.2d
the Ramsland
of
Inc.,
Agency,
v. Hart
283
119
Ole Ramsland Univ.
N.W.2d
after discussions between
(N.D.1979).
2, 1989,
party challenging finding
A
of
Toby Ramsland. On
appeal
fact on
bears the burden of demon-
age
years, Toby Ramsland was
at the
of 82
clearly
fully capable
strating
finding
that the
is
by all to
of
erroneous.
considered
be
Dick,
(N.D.1987);
Dick v.
414
288
conducting
personal
and business af-
N.W.2d
Routledge
understanding
Routledge,
of
v.
fits had and at- special significance military to tached ser- WALLE, C.J., and LEVINE and VANDE and he earned as a vice the veterans benefits SANDSTROM, JJ., concur. died, Toby was result thereof.” After Ole alone, adrift, long- help and turned for to a MESCHKE, Justice, concurring. many neighbor, time one of his second cous- remanding to I concur “with directions ins, tried, Elvira Thiel. but it was not She stay judgment until the trial court has same with Ole. or under what condi- determined whether 1,1989, August Elvira and her husband On implied in- impose an trust on the tions to bank, opened a took to New Salem during Toby’s life- come from there, co-signed safety deposit and Ole’s box time,” I vote to direct that relief be but pay he could Ole’s funer- a loan with so granted some valid defense exists that unless gold expense. They found in the box 118 al appeal. I argued has not on this write been Elvira, gave upon to coins that later my and separately to state view of the record suggestion box. her to cancel the my voting imposi- to direct the reasons for implied tion of an trust. Elvira took to On attorney office. Schirado Lester Schirado’s together Ramsland brothers Four bachelor Toby signed, application an prepared, and parents on the farm outlived their Toby personal representative of Ole’s Aging Toby be- name near Almont. estate; Toby’s property came, a will that left all of years, the sole survivor when his at 82 Elvira; general power of brother, July and a durable died on last Ole attorney specific power to family’s to Elvira with will left all of the accu- 1989. Ole’s properly whom is trans- Implied An "3. Each one to trust —How created. "59-01-06. following implied trust arises in the cases: a trust holds the same as ferred in violation of thing wrongfully trust, who detains a is "1. One implied unless he an trustee under such implied the benefit of the an trustee thereof for good purchased and for a valuable it in faith owner. consideration. fraud, gains thing by acci- "2. One who property is “4. When a transfer of real influence, dent, mistake, undue the violation of person the consideration made to one is, trust, act, wrongful unless he has or other another, paid by a trust is is or for therefor thereto, right implied better some other and person or presumed to result in favor thing gained for the benefit of the trustee of the payment is whom such made.” person would otherwise have had it. who administering much Toby in Ole’s estate. the rest of his as his brother assist 18,1989, Toby September previously. asked Schirado On a transfer to Elvira of a 1968 to document Believing that controlled the farm- he still adjacent home located Detroiter mobile land, Toby took the fall 1990 cash rent for pre- rеsidence. Schirado Ole and land, paid the 1990 real estate taxes executed, pared, Toby and someone recorded January spring took 1991 cash an estate “deed of distribution” that trans- spring rent for the land. In the home, only but also all ferred not the mobile ASCS, Toby signed up the land with the but that included its location and the three lots thereafter Elvira Thiel had write Schirado Toby lived. continued residence where pay directly. her the renters in the residence. to live neighbor Erwin an old friend and decision, According to the trial court’s Toby’s, had rented and farmed 240 acres of September “un- executed the 18 deed years. the Ramsland farm for fifteen In the gifting mistake of law that he der the began negotiate fall of Erwin Elvira Thiel one 1968 Detroiter mobile home Toby buy those acres. Erwin testified: estate,” real and the absent associated were at his office twice and talked We properly express “failed to reflect the deed about, uhm, I, that was we grant[or], Toby intent of the donor and So, really getting anywhеre. weren’t one Ramsland.” The court set aside this by myself I I time was Mandan deed, appeal and Thiel did not stopped in [Schirado’s] at office and talked though judgment that decision. Even to him about this and then Mr. Schirado so, say ruling the trial court’s leaves does that, you he said can’t sell this name, movable home in mobile Elvira’s land because he doesn’t it. own He said registration from her of the title certificate in was, give it was Ole’s wishes to it all to in 1992 trial. her own name before the *6 Elvira. legal Toby Schirado did more wоrk for September On Schirado wrote that, reason, primarily for whatever benefit- Toby: protecting Toby. Elvira Thiel ted without file, I through had checked Ole’s estate possible a The conservator identifies reason. and it was determined that the land which 1990, early died, In Elvira’s husband you previously wished to sell to Ervin was represented in probating Schirado Elvira her Elvira, your protect transferred to Vet- husband’s estate. Schirado billed Elvira for Thus, erans’ Administration benefits. if July work on her husband’s his estate you were to sell the land to Ervin at this Although 1990. the trial court made no ex- time, appear you it would that would be plicit finding subject, apparent on the it is losing your Veterans’ Administration bene- Toby mostly for Schirado’s work benefit- fits. Elvira, Toby. Interestingly, ted the trial Yet, court assessed costs and disbursements Toby’s Schirado did not record deed “against only the Defendant 11, Schirado.” of the 800 acres until March Elvira Then, to,” “Toby 1991. because wanted me 6,1990, On June Elvira took to Schi- April Elvira sold the 240 acres to Erwin in again, prepared rado’s office where Schirаdo by contract for deed. Elvira received a Toby signed: two more documents that a $30,000 downpayment price on a renunciation of all interest the 800 acres of payable years the balance over ten at 9½% farmland, Ramsland and an estate “deed of Afterward, Toby thought, interest to her. “I giving distribution” the 800 acres to Elvira. gotten money” should have that Elvira kept This deed was unrecorded in Schirado’s Evidently, downpayment. received for the expressly file. The trial court determined: Toby came to believe that he couldn’t trust Toby Ramsland’s motivation to make said “provide Elvira to for for the rest of his [him] gifts preserve recipi- towas his status as a life, previously.” much as his brother had pension. Toby ent of his veteran’s benefit attorney Engel, Ramsland further believed that went to [Elvira] Austin G. provide represented purehas- Thiel would for Ramsland for who had Erwin Thiel in 1991, 9,1991, Toby transferring the deeds May to set aside mg the 240 acres. On home, pay executed. farmland and the Almont over Engel a new will prepare property to gave all his farm- Toby’s the lease and contract monies from the new wife, Nancy; granted his equitable his Erwin Thiel and land to and to obtain other Larson, tenant, option to fraud, influence, farm Jake other on theories of undue relief of farm- remaining fact, 560 acres purchase the mutual mistake of law and lack of con- value; appointed land at fair market sideration, fiduciary and breach of relation- representative. Nancy personal as his trial, Thiel ship. After the trial court set aside the residence, Septem- to the Almont dated deed wasn’t, “Toby didn’t seem Concerned 18, 1989, mistake, for but that the ber held things handle or he able to function and to be “clearly convincingly evidence establish- well,” very Ronald handling things wasn’t knowingly and volun- es that Ramsland Otto, County service the Morton veteran’s tarily sought gift acres of farm- [800 County Court petitioned officer the Morton Ramsland estate to land] [Elvira] Ole 2, for July appoint a conservator on 1991 to Thiel.” Toby. represented Elvira Schira- do, appointment. Sеptember resisted the On Nevertheless, paragraph, in the same 12,1991, County appointed Court the Morton Toby’s trial court concluded that “motivation Chaussee, public administrator William gift[ preserve his status ] to make said Counties, Toby’s Burleigh as and Morton pen- recipient of his veteran’s benefit as conservator, powers designed to with limited pro- belief that “Thiel would sion” under the manage daily affairs free to leave for the rest of his vide for Ramsland account, consult with checking but previously.” much as his brоther had affecting on decisions Moreover, the trial court declared that “the inventory prop- prepare complete by Toby attempted renunciation erty, accounts. as well as annual is inef- estate] his inheritance from Ole’s [of 24, 1991, Toby September revoked the On therefore, set aside in its en- fective and is given power attorney that he had tirety,” more apparently because it was made 4, 2, Thiel on 1989. On November death. See than nine months after Ole’s notified Administration Veteran’s Unaccountably, the trial NDCC 30.1-10-01. terminating benefits that it was conveyance court confirmed the June “you because have as of “valid,” making completely Elvira Thiel *7 in with a total received an inheritance simple” farmland “the in fee owner $126,000 you approximately and that value of the trial court without the condition $10,000 receiving per year in farm have been intended, provide for “to found follow-up 1989.” In a notice rentals since life.” for the rest of his 6, 1991, the overpayment on November VA Also, inconsistently, the court ordered $7,616 in repay benefits demanded Toby “for and all real Thiel to reimburse overpaid him. paid upon real estate subse- estate taxes officer, Otto, his veterans service Ronald 1990,” 6, but ordered all rent quent to June Toby’s money “g[o]t back” testified that he deposit with payments, contract held on paying by convincing “that the VA clerk, than rather disbursed [expenses] of his own checkbook for Ole’s out trans- expressed purpose of the used for the “that income last illness and burial” and Toby “for the rest of to Thiel to benefit fer from that land that he would have received his life.” mon- closed was estate before the estate was help ey.” “I was able to Otto testified that appeals array of an the conservator While benefits,” tempo- [Toby] his at least reinstate incompetence, his urging Toby’s questions, rarily, Toby “would ... be better but that law, and undue influence of fact and mistakes income of the farmland rental off’ with on him and constructive fraud pension. per year, than with the VA Schirado, agree the trial court’s I Thiel and largely affirm- on those matters are Toby, sued decisions Chaussee As conservator majority opin- Among reasons the able. on December Elvira Thiel and Schirado affirm, though, “Toby’s Introductory employs to is that Trusts Note to ion General Trusts, past Principles Resulting Topic ... consistent with his actions were Ch. (1959). by convey- practice retaining pension pp. 322-26 Because the court ing away any recognize power interest he received grant equitable did not its Toby’s past farmland.” But reliance on his resulting relief in the form aof trust for him, kept brothers to care for while he his Toby on the from income the farmland for pension, dependence lifetime, is not the same as his I vote to remand with directions relative, a has on more remote who neither equitable to allow that limited relief unless nor maintained his trust assured the continu- pre- some valid defense exists that was not ation of his sented here.
Moreover, appropri- the conservator seeks equitable
ate relief for based on Elvi- fiduciary relationship
ra’s one of his my opinion,
theories in the trial court. In than confirm
rather Elvira Thiel’s uncondi- farm, ownership
tional of the Ramsland obliged by grant Toby
trial court was law to equitable limited relief the form of a re- Dakota, STATE of Nоrth Plaintiff sulting trust on all income from the farmland Appellee, during his lifetime. equitable closely Limited relief most fits that the trial court made about Terry BROOKS, Darnell Defendant for, of, purpose the reason Appellant. Toby gave Elvira Thiel. See transfer that Cr. No. 930286. 59-01-06(2) (“One NDCC 59-01-05 and who gains thing by mistake, ... ... the viola- Supreme Court of North Dakota. trust, act, is, tion wrongful or other unless he has some right other and better Aug. 1994. thereto, an implied thing trustee of the gained person for the benefit of the who it.”). Considering
would otherwise have had
the ineffectiveness of the renunciation make, express
Schirado and the §
directions of 38 U.S.C. 1522 about the use corpus veteran,”
of “the of the estate of
quoted majority opinion, Toby’s in the pen-
sion status is still uncertain. While the re- may
nunciation necessary have been *8 land, gift
make the probably impor- preserve
tant to depend
Unable to “pro- on Elvira Thiel to [him]
vide for for the rest of his much as previously,”
his brother had Toby should re- enough equitable
ceive get relief to the in-
come from the during Ramsland farm relief,
lifetime. With this limited gone,
Thiel will have the land when is intended,
as he keep but she will be made to promise
her admitted about
gifts: give you “I enough money.” principles generally for this relief are (Second)
explained by the Restatement