*1 the GUARDIANSHIP In the Matter of and ESTATE OF
of the Person
Jennie JACOBSEN.
Nos. 17113.
Supreme Dakota. Court of South Briefs 1991.
Considered on Feb. Sept.
Reassigned March
Decided McGill, Beresford, appel-
Michael J. Yankton, lant First Dakota Nat. Bank of Light, appellant C.E. Har- lan Jacobsen. Vermillion, appel- Kogel-Hasse,
Linda Virginia Solberg. lee HENDERSON, (on reassign- Justice ment).
PROCEDURAL HISTORY/ISSUES (Harlan) Harlan commenced filing proceeding by a Petition for Guardianship over Person 24, 1989. July of Jennie Jacobsen on Solberg (Virginia) filed also Appointment Guardianship Petition asking the court to on November party and an co-guardians of the and estate of moved December On Petition, requesting that amend *2 health, declining Due to her it became appoint Harlan and increasingly carry difficult for Jennie to on co-guardians of the party as daily 1979, her affairs. while was A trial estate of Jennie Jacobsen. and alert, still Jennie executed a Pow- concerning this matter. subsequently held naming Virginia er of Attorney her Attor- and by Virginia filed were then Motions ney Virginia in Fact. understood that her hearing attorney’s fees and a Harlan for only responsibility Attorney in Fact was 6, February held on was mother, to assist her not to her February the trial court On assets. Findings of Fact and Conclu- entered its The trial court determined that the best designated Virginia was sions of Law. interests of Jennie would be served and First Dakota Guardian of guardian. pointing Virginia as The trial National Bank of South Dakota court based this decision on the fact that (Bank) designated of the Es- was living Virginia Jennie had been with and Virgi- Both Harlan and tate of Jacobsen. her husband for the ten and April fees on nia were denied loving relationship maintains with them. appeal, presents Harlan two is- 1990. On helped the trial court to determine sues: provide her and (1) appointment Virginia as Was the supervision constant with com- person, guard- and Bank as hand, fortable environment. On the other Jacobsen, an ian of the estate of Jennie the trial court found that Harlan has of the trial court’s discretion? shown no interest in his mother or the management prior of her affairs to 1989. (2) re- Should Harlan have been awarded Further, the trial court made no attorney’s fees and ex- imbursement of to waste or of estate as- penses from the Jennie Jacobsen estate? sets. appeals Bank also However, the record belies this decision Virginia as Guardian over the Person by the trial court. A review of the record Appeal No. 17112. Virginia’s admitted financial reveals part, affirm in reverse in improper self-dealing. indiscretions and remand. following examples: are but a few (1) Using money, Jennie’s she made an FACTS $23,000 unsecured, unmemorialized loan to tractor, purchase (Jennie) her son Kevin for the on was born jailed knowing Kevin insolvent and was legally August 1896. She is blind writing checks. bad from arthritis. Jennie also suffers suffers arteriosclerosis, making her from cerebral husband, (2) Ray, for Virginia and her forgetful confused. property for many years leased Jennie’s $6,000 paid any money per year but never married to Alfred Jacobsen Jennie was why payments asked no to Jennie. When (Alfred) January died on made, keeping Virginia said “We are children; Virginia, three They had policy get paid that as an insurance At the time of her and Marlow Jacobsen. just taking care of her.” ... “We death, Jennie was husband’s $6,000 off whatever she owes us knock off During County. family farm Yankton staying with us.” When asked what time, family agreed that it the entire them, staying with Jennie owes them interests for a would be in Jennie’s best decided that Virginia said “We haven’t family to move in with her. Kevin yet.” son, duty Solberg, Virginia’s assumed this $10,000 he left to start out of from 1979 to when took in 1986 and 1987 college. At Jennie mother’s bank accounts them for care. “partially and her reimburse” moved with husband. she at the same time This was done She has lived there ever since. payments (13)Virginia re- lease executed forms with the withholding cash (2), supra. to in which mother ferred ASCS office relin- government program quished claim $24,000 borrowed payments permitted paid them to be collateral, Jennie, a note or from without *3 Ray, though even there her husband had purchase husband to her and her enable payment no of rent been to Jennie the Those funds forty acres of farmland. pro- eight prior years. government The repaid. parently have not been payments Ray gram that received on the (5) explain how nine Virginia failed to $5,500. land exceeded security income to Jennie years’ of social any sav- type accumulate into of did not considering the
ings, especially
DECISION
minimal.
expenses were
I.
the
We hold that
evidence establishes
farm
(6) Virginia
to
failed
account
the trial court
abused its
paid from Jennie’s
accounts
bank
appointing Virginia Solberg
discretion in
County farming operations.
on Yankton
However,
the
the
of
(7) Virginia
Kevin to
permitted
son
the Bank
of
compensa-
machinery
use Jennie’s
without
the estate
was not an abuse
permitted Kevin to live on
tion. She
trial
court’s discretion.
property rent free
County
Yankton
farm
and,
actually paid
restrictions,
Kevin’s
Subject
statutory
at
same
to
utility
money.
bills with Jennie’s
appointed
selection of the
to be
guardian is matter
a
which is committed
knowing
did
While
that her son Kevin
largely to
appointing
the discretion of the
good farming
or abilities or
not have
skills
Am.Jur.2d,
court.1 30
own,
capital
Virginia “leased”
any
of his
Ward,
(1968).
page
27
29
share-crop basis)
(apparently on
Jennie’s
a
appeal
standard
review on
case
preference
to another
property to Kevin
is: Did the trial court
its
abuse
capital.
such
farmer
had
skills
appointing Virginia guardian
over the
(9) Despite
farming prac-
horrendous
his
by appointing
of Jennie or
the Bank
tices, Virginia
continued to “lease”
estate
of Jennie? The
County property
Yankton
to Kevin.
a
term “abuse of discretion” refers to
dis
(10) Virginia
to
rent and
failed
demand
purpose
to an
cretion exercised
end or
not
permitted
crops
market
thus
a bank
clearly against
justified
reason and
crops. Additionally, she
levy
on Jennie’s
Herndon,
v.
evidence. Herndon
305
legal
pursue
take
action
failed to
(S.D.1981). Only a
N.W.2d 917
“clear”
pay-
government program
nie’s share of
discretion warrants
reversal.
arguably
crops
ments and
bank
(S.D.
v.
319
167
Rykhus,
N.W.2d
converted.
that, considering the
We find
totali
(11) Virginia
money for the
used Jennie’s
circumstances,
ty of the
the trial court
Ray
machinery by
purchase
clearly abused its discretion.
piece
equipment,
and son Kevin.
One
combine,
destroyed by
no in-
fire and
trial
Harlan asserts
court
purchased
had
for it.
surance
been
by appointing
its discretion
abused
as the
of their mother. The
Virginia failed to make a reasonable
argument
is
accounting of
thrust
has
monies since she
Jennie’s
mishandled
incompetent.
become
Jennie’s assets over
incompetent.
1. SDCL
in this title referred to as an
30-27-6 states:
court,
guardian, is to
The
be
appears
circuit
when it
convenient,
may appoint
guided
in §
the consideration set forth
30-
either,
30-27-25,
person and
a minor or of
27-19 to
also,
ill
cause
a
mentally
who is
or for
Guardianship, 71 S.D.
See
In Re Knott’s
physically
incompetent
53,
(1945).
21
59
person being
property,
his own
hereafter
Rykhus,
167,
Attorney
capacity
years in
five
Herndon,
917;
have outlined
Fact,
N.W.2d at
Davis v.
exemplified what
(1961);
Kressly,
He believes this behavior
78 S.D.
Harlan’s 82 S.D. of es- ing Bushnell, as to waste or Slagle & Co. v. asking Essentially, Harlan is assets.”
tate
This will restrict fami-
N.W.2d 914
in this case.
to find the facts
this Court
ly animosity.
reverse the decision of
Ordinarily,
request for review would
appointing Virginia
the trial court
Guardi-
Find-
properly
this Court.
not
be before
of the Person of Jennie.
*4
of the
ings on waste
argues briefly that the
Harlan also
meaningful
necessary
permit
estate are
to
appointment
of the Bank as
of
appellate review.
the estate of Jennie Jacobsen was an abuse
question
presented
Generally, no
disagree.
of discretion. We
We believe
refusal of the
appellate review
appointing a financial institution to
evidentiary
find incidental or
trial court to
professionally manage
wealthy
a rather
es
However,
can review
facts.
this Court
against
tate is not
reason and evi
find
the trial court has failed to
where
in the record
dence. There is no evidence
un-
as to evidence which is
ultimate facts
incompetent
Bank was
to
to show
only
inferences are all
controverted and the
act as
of her estate. The Bank
Grover, 148
way.
v.
Conn.
one
Corsino
be,
be,
impartial, inde
and should
(1961);
A.2d 267
Post v.
170
Hartford
thinking entity.
pendent
(1899);
Co.,
362,
denied Harlan’s dissenting part). *5 agree majority opinion I with the Appeal No. in ap- court did not abuse its discretion chal- By separate appeal, the Bank also pointing the bank as over the Virginia lenges as estate of Jennie. person of Jennie. It I affirm the trial court on the its dis- argues that the trial court abused Virginia appointment of as of the indepen- refusing cretion in person of It must taken into Jennie. be dent, non-family guardian. member as The actually account the trial court viewed believes, asserts, vigorously that Bank and judged credibility. witnesses and their The Virginia has committed serious breaches of is whether the trial standard review fiduciary duty past management in appointing in court abused its discretion allega- estate. This includes over Jennie’s Virginia person. of the misappropria- and tions of The term “abuse of discretion” refers to money. tion It also believes of Jennie’s purpose a exercised to an end or Virginia’s appointment create hos- will justified by clearly against and reason not family. tility within the Herndon, 305 and evidence. Herndon v. merits, determination on the Due to our (S.D.1981). Only N.W.2d 917 a “clear” paragraph de- heretofore under one of our reversal. abuse of discretion warrants is, cision, appeal essentially, moot- Bank’s (S.D. Rykhus, ed. part and part, Affirmed in reversed SDCL 30-27-6 states: appoint- purposes proper remanded court, appears neces- The circuit when it of the Person of ment of a Guardian Jennie convenient, guard- sary may appoint or a either, or ian of the and mentally or of a is ill a minor who C.J., J., MILLER, HERTZ, Acting and any physically or for cause
concur. property, incompetent to his own being in this title hereafter J., SABERS, specially. concurs incompetent. The referred to as an J., WUEST, concurs in and dissents court, guardian, is to be part. set forth in guided by the consideration 30-27-25, 30-27-19 § AMUNDSON, J., having not been a also, Guardianship, 71 Re Knott’s of the at the time Court this case See considered, participate. was did not erty as a fiduciary Id. the best or trustee. trial court determined
The § power right served possess of Jennie would be includes the interests had Virginia guardian. and control the pointing personal real and ward’s Thus, and her husband Id. property. guardians with been and maintains ten the estate have much more control over loving relationship them. with Virginia’s alleged ward’s assets. misman- con- Jennie with provided her husband and agement is not to her relevant limited role envi- supervision and a comfortable stant Sattler, Dr. T.H. the Jacobsen ronment. agree majority I with the years, family physician forty reported guardianship pro be awarded 1989: the court November ceedings pursuant and to SDCL 30-26-3 daughter, Virginia Solberg, The disagree SDCL 30-25-6. with need, appear every to meet her two-prong application test family staying has been a with cites two cases: Mat majority case. blessing always and what advisable Trust, Hyde D. Hadleigh ter of pleasant circum- under a comfortable and Es Matter of who elderly individual stance Hafferman, (S.D. tate N.W.2d 238 requires supervision care. 1989), both authored Justice Sabers discretion, appoint- in its The trial (1) the proposition services ren member, family developed a ed a who had estate; dered must be beneficial to relationship with mother over close the services because of sixty-nine years. It period of laches, negligence, fraud failure to de day-to-day cared for her on a basis. per of the estate fend interest strong There was a bond between representative of the That is sonal *6 placing than and her mother. Rather beneficiary rule for estate. the the impersonal in the of a environment executor, However, as to rule is the home, it nursing the trial court decided that quoted Enge- Hafferman, In we different. be far better to have Jennie continue I, that an bretson which stated executor argues daughter. Harlan to live with her to: administrator entitled mother’s has mishandled her necessarily [Attorneys’ incurred fees capac- five in her assets trust his in liti- .administration of the court ity attorney in fact. The trial for the of the estate of gation benefit finding it specifically “makes no stated decedent, good faith and conducted waste or of estate as to prudence. care with reasonable assets.” added.) (Emphasis proceeds enter majority opinion In (quoting Hafferman, 442 N.W.2d at claiming findings of financial miscon- fact I), (Engebretson Engebretson’s re Estate Virginia’s part. my opinion, In duct (1941)). 255, 259, 1 N.W.2d 68 S.D. alleged discrepancies are not relevant these Engebretson’s then noted that In re appointment of II), 572, 5 (Engebretson 68 S.D. property the A the (1942), rule for clarified the the have different and a attorney executor for reimbursement of an powers. 39 C.J.S. Guardian duties fees: Generally, at the Ward § person may spend income guardian of the alternative, rule is stated only from the ward’s estate for meaning that if should be understood Id. support and maintenance. attorney em- of an the fees service guardian may not ex- Normally, the are necessar- ployed the administrator
pend principal estate without ily incurred in the administration Id. approval. 62-63. §§ trust, to authorize that this is sufficient showing contrast, property their allowance without general authority prop- over his benefit ward’s (quoting Hafferman, N.W.2d at 242 II, at
Engebretson S.D. at Thus, stated, Engebretson “under II, Engebretson
I and the administrator attorney
must show that fees were
necessarily incurred in the administration
of the estate or for the benefit of the good it faith and that was done negligence.” Although Id.
and without the facts
this rule is not on all fours as to case, rely upon grant
in this I would it to attorney’s
both and Harlan some acting good parties
fees. Both by bringing
faith and benefitted estate guardianship proceedings by get-
ting the issues resolved.
I am concerned that a denial of attor-
ney’s precedent chilling will set a guardianship proceed-
commencement of ings in future cases. The Court con- Vermillion, Kogel-Hasse, Linda litigants trol abuses obstructious pellant Virginia Solberg. litigation by denying needless fees or limit- Light, appellee C.E. ing them. would remand to the trial grant court to both and Harlan a McGill,Beresford, Michael appellee J. sum for reasonable fees.
HENDERSON, Justice. FACTS/PROCEDURAL HISTORY/ISSUE (Harlan) brought Harlan Jacobsen an ac- *7 tion for the of a over mother, and estate of his In the Matter of the GUARDIANSHIP (Jennie) July Virgi- on 1989. of the Person and ESTATE of Jennie, Solberg (Virginia), daughter nia Jennie JACOBSEN. Appointment filed a also Petition for No. 17207. Guardianship asking November Supreme appoint independent Court of South Dakota. the court to her and an party co-guardians third Considered on Briefs Feb. and estate of Jennie. Decided March 4, 1989, On December Harlan moved to Appointment amend his Petition for Guardianship, asking the court to party Harlan and an co-guardians and estate of Jennie. 8,1989.
A trial was held on December It concluded December 1989. On Febru- ary Findings the court entered its April and Conclusions of Law. On of Fact 4, 1990, the court issued a Memorandum designating Virginia as Opinion