Case Information
*1 #27919-a-SLZ
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
ESTATE OF LESTER BRONSON, Deceased.
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APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE CARMEN MEANS
Judge
* * * *
LEE SCHOENBECK
JOSHUA G. WURGLER of
Schoenbeck Law, PC
Watertown, South Dakota Attorneys for appellants
Debra Mills and Gloria Sichmeller.
THOMAS F. BURNS
Watertown, South Dakota Attorney for appellee
Leslie Bronson, Personally and as Personal Representative of the Estate.
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CONSIDERED ON BRIEFS ON JANUARY 9, 2017 OPINION FILED 03/22/17 *2
ZINTER, Justice Lester Bronson executed a power of attorney appointing his son, Leslie
“Butch” Bronson, as his attorney-in-fact. Several years later, at Lester’s request, the bank added Butch as a joint owner on one of Lester’s bank accounts. On the day of the transaction, Lester was allegedly physically unable to sign his name to the required bank form, so Butch signed Lester’s name while they were together in the bank employee’s office. After Lester died, his daughters brought claims on behalf of his estate against Butch to recover the account balance together with exemplary damages. The daughters contended that in signing Lester’s name, Butch was exercising his power of attorney and had engaged in impermissible self-dealing. After a court trial, the circuit court dismissed the daughters’ claims. The court found that Butch signed Lester’s name as an amanuensis rather than exercising the power of attorney. The daughters appeal. We affirm.
Facts and Procedural History In 2003, Lester executed a power of attorney appointing Butch as his
attorney-in-fact. At that time, Lester and his wife were the joint owners of a checking account. Lester’s wife died in 2004, and in November 2010, he went by himself to the bank where the account was located to remove her name from the account. He met with Nancy Byer, a banker who had worked with him for many years. Lester informed Byer that he also wished to add Butch to the account. Because Butch’s signature was needed to be an account holder, Byer called Butch and told him to come to the bank. When he arrived, Byer prepared the form necessary to add him to the account as a joint owner, and she explained the form to *3 Lester and Butch. Byer explained that Butch would be able to write checks on the account and that he would be the sole owner of the money in the account upon Lester’s death. Lester confirmed that those were his intentions. Byer left Lester and Butch alone in her office for a brief time while she made a deposit. When she returned, the form appeared to have been signed by both Lester and Butch. Lester died in December 2014. He was survived by his son, Butch, and two daughters, Gloria Sichmeller and Debra Mills. Lester’s estate included substantial land and certificates of deposit. ∗ He also had $124,643 in the joint checking account at the time of his death. After Lester’s death, Sichmeller and Mills (Petitioners) brought these
claims against Butch for breach of fiduciary duty and conversion. They sought recovery of the checking account balance and exemplary damages. Petitioners asserted that Butch had signed Lester’s name on the bank form, which they contended was an act of self-dealing that was not specifically authorized by the power of attorney. Although both Butch and Byer testified in their depositions that Lester had signed the bank form, they were apparently unaware that a handwriting expert had opined that Butch had in fact signed Lester’s name. Byer, upon being shown the expert’s report at the end of her deposition, then stated that she could not remember who signed Lester’s name. Butch continued to believe that Lester signed the form.
∗ Under Lester’s will, which he executed in 2013, all of his personal property was to be equally divided among all three children, and the real property was divided approximately equally. The will nominated, and the circuit court appointed, Butch as the personal representative.
[¶5.] The case proceeded to a court trial to determine ownership of the account. The parties stipulated that Butch had signed Lester’s name. Over Petitioners’ objection, the court admitted oral extrinsic evidence of Lester and Butch’s visit to the bank. Butch testified that while at the bank, Lester informed Byer that he wanted Butch on the account so that the balance would go to Butch. Butch also indicated that Lester had severe gout and that parts of the fingers on Lester’s right hand were amputated in 2005 or 2006. According to Butch, Lester had difficulty holding a pen whenever his gout flared up. Butch further indicated that Lester’s gout was bad on the day the bank form was signed. Byer also testified at trial, and she described Lester as a man who was
meticulous with his money and who knew exactly where he wanted it to go. She testified that it was Lester who wanted to add Butch to the account, that Lester did not want anyone else except Butch on the account, and that Lester wanted the account to go to Butch after Lester died. According to Byer, Butch signed the bank form when all three of them were in her office. She then left her office to deposit money for Lester. While outside her office, she observed Butch trying to put a pen in Lester’s hand. When she returned to her office, Lester appeared to have signed the form, but she testified that she did not see Lester sign it. Byer also confirmed that Lester had problems with gout and would occasionally complain about pain in his hands. After hearing the evidence, the circuit court ruled that Butch was the
owner of the funds in the account. Although the parties stipulated that Butch had signed Lester’s name on the form, the court found that Butch did not act pursuant *5 to the power of attorney. Instead, the court found that Butch had acted as “a mere instrument or [amanuensis]” at Lester’s request. Petitioners appeal, arguing that Butch obtained joint ownership of the account by engaging in impermissible acts of self-dealing. Petitioners also argue that the evidence was insufficient to support a finding that Butch acted as an amanuensis. Additionally, Petitioners request this Court to require the estate to pay their appellate attorney’s fees.
Decision
Amanuensis Doctrine Petitioners’ arguments focus primarily on legal principles governing
self-dealing by an agent acting pursuant to a power of attorney. Specifically, they contend that: Butch’s power of attorney did not authorize him to sign Lester’s name on the bank form; signing Lester’s name was an impermissible act of self-dealing; and the circuit court erred when it based its ruling on oral extrinsic evidence of the circumstances surrounding the signing. It is undisputed that the power of attorney in this case did not give
Butch the power to self-deal. We also agree with Petitioners that: “a power of
attorney must be strictly construed and strictly pursued,”
Bienash v. Moller
,
instrument in the presence of the party, and by his authority, and where he knows
the contents of the same, the signature will be regarded as the signature of the
party whose name purports to be signed to the instrument . . . .”
Hickox v. Bacon
,
[¶11.]
Nevertheless, Petitioners insist that our law of agency and fiduciary
self-dealing must govern this case, or else the law protecting principals will be
subverted. We disagree. Applying only the laws of agency and fiduciary self-
dealing in a case like this would create an irrebuttable presumption that once a
power of attorney is granted, every subsequent act of the attorney-in-fact involves a
fiduciary duty of that agent—even if it is an act regarding a matter unconnected to
the agency. Petitioners cite no law for such a presumption, and we decline to adopt
one. After all, “[t]he law will imply such duties only where one party to a
relationship is unable to fully protect its interests and the unprotected party has
placed its trust and confidence in the other.”
Bienash
,
person acting as an amanuensis also has an interest in the transfer or is a fiduciary
for the other. We find the California Supreme Court’s resolution of those situations
instructive. In
Estate of Stephens
, a daughter held a power of attorney for her blind
father, whom she cared for and who was dependent on her.
Sufficiency of the Evidence
Petitioners contend that because there was no direct evidence that
Lester asked Butch to sign for him, and because the circuit court only found that
Lester “in some manner” asked Butch to sign, the evidence was insufficient to
support a finding that Butch signed as an amanuensis. Petitioners also emphasize
discrepancies between Butch’s and Byer’s deposition and trial testimony. We
acknowledge that there was no direct evidence that Lester requested Butch to sign
for him. But “[d]irect and circumstantial evidence have equal weight.”
State v.
Webster
,
a mere amanuensis. It is significant that there is no claim that Butch obtained
ownership of the account through fraud, duress, or undue influence; and there is no
claim that anyone other than Lester desired to add Butch as a joint owner. Indeed,
Lester was described as a man who was very meticulous with his money and who
*10
knew exactly what he had and where he wanted it to go. Additionally, there was
evidence that Lester wanted to add Butch to the account as a joint owner, Lester
went to the bank alone to do so, and Lester directed the bank to prepare the
paperwork necessary to accomplish his wishes. Butch then went to the bank only
after Byer called him and told him to come because all joint-account holders’
signatures were required on joint accounts. Once Butch arrived, Byer explained the
bank form to Lester and Butch, and Lester confirmed that he wanted Butch to be
the sole owner of the account upon Lester’s death. There was also evidence that
Lester had gout, which made it difficult for him to use a pen. This circumstantial
evidence, together with the testimony that both Lester and Butch were present, side
by side in Byer’s office, when the form was signed, supports the circuit court’s
decision. The evidence supports a finding that Butch’s “signing of [Lester’s] name
was a mechanical act in that [Lester] intended to sign the document using the
instrumentality of the amanuensis.”
See Estate of Stephens
,
Butch was not exercising his power of attorney when he signed Lester’s name; rather, he was acting as an amanuensis. Thus, the circuit court did not err in rejecting Petitioners’ claims and ruling that Butch was the owner of the funds in the account.
Appellate Attorney’s Fees Petitioners move this Court for an order requiring their appellate
attorney’s fees be paid from the estate. “SDCL 15-26A-87.3 permits an award of
appellate attorney’s fees if they are otherwise allowable.”
In re Estate of Laue
,
estate, they are not entitled to fees under the “all other persons” portion of the statute. However, Petitioners contend that because they brought this action on behalf of Lester’s estate, they are entitled to attorney’s fees whether successful or not under the “personal representative” portion of the statute. Petitioners contend that in suing the appointed personal representative on behalf of the estate, they “stepped into the shoes of the personal representative.” But the circuit court never appointed Petitioners as personal representatives or special administrators of Lester’s estate. Under SDCL 29A-3-601 and SDCL 29A-3-614(2), personal representatives or special administrators of the estate must be appointed by the court. Although the parties stipulated that Petitioners could bring this action against Butch on behalf of the estate, that private-party stipulation did not make them “personal representatives” within the meaning of SDCL 29A-3-720. Therefore, we deny Petitioners’ motion for appellate attorney’s fees. *12 Affirmed. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,
Justices, concur.