Matter of Estate of Koch

of Chris Matter of the ESTATE In the KOCH, Deceased.

Geo. Steiner, STEINER, Rus- Anton J.

Arlene Margaret Koch, and J. Lena Granier

sell

Dietzman, Appellants, Petitioners DICKMEYER, Grim,

Marlys Lela M. A. McMaines, Robinet, K.

Karla J. Connie Koch, Respondents Larry A.

Appellees. No. 9374.

Civ. Tschider, Morris A. and Richard P. Rausch, Bismarck, for petitioners ap- Supreme of North Dakota. Court pellants; argued by Morris A. Tschider and 10, 1977. Nov. Rausch, Richard P. Bismarck. Nodland,

Lundberg, Conmy, Rosenberg, Schulz, Bismarck, respondents Lucas & appellees; argued by Nodland, Irvin B. Bismarck.

ERICKSTAD, Chief Justice. judgment This is an from a Burleigh Court, County affirming District decree of the which denied purported admission to Last Will and Testament Chris Geo. Koch. will, The appellants, proponents of the brother, brother-in-law, the deceased’s sisters, appellees, and the contestants of the will, are his five children.

The in this issue case whether or not the Last Will and Testament of Chris Geo. 11,1974, Koch dated March was the rendering of insane delusions the will null testamentary capacity. and void for want of decedent, Koch, Eliza- married beth Koch in 1940. There were five chil- marriage, appellees dren born of farmer, essentially this case. Chris years for a he also hauled number Compa- the Farmers Union propane for Oil ny on a basis. commission Koch, According to Elizabeth there were problems until significant no marital 1960’s, problems 1960’s. In the started suspicious of his fami- arise as Chris became showing sui- ly very depressed, and became tendencies. cidal Larry Lela testified that daughter testified that there were Chris’ also a 1964, Chris, shaking crying, relat- while couple of incidents when yelled Chris at and mother was bad. He to her that her ed pushed apparent him for no reason. He anything that she never did and was stated silent, day then became and the next he running around with other men. next right again. Larry would be all also testi- daughter that he had tried day he told his March, 1973, exploded fied that in Chris one driving truck over when he tip during evening apparent dinner for no rea- up himself. Lela then so as to kill set son and threatened downstairs and Thakor, for Chris with Dr. appointment shoot himself. He to be physically had in Bismarck. After this meet- psychiatrist by Larry restrained at that time. ing, Dr. Thakor recommended that Chris be psychiatric ward of admitted the St. According daughter Connie, to his she Hospital, objected. Alexius but Chris He father, also 1969, was told her after let himself be admitted to a did medical thoughts suspicions suicidal and his hospital, ward remained there her mother. She testified that he stated for about a week. him, that everybody plotting against Larry 1965, Chris’ son testified that including his friends. She also said that he Larry he day Chris said to had that portrayed differently himself when non- by trying tried to kill himself to turn over family persons were around. He would be He on to state that his truck. went he had deep depressions relating be his delu- live, die, no reason to he wanted to and he sions; the next neighbor moment a would hanging himself often pictured from a come over and his personality change would by rope. day, Larry beam a Later that and within seconds and he would be normal running his mother found the truck again. garage with the door closed and with Chris

lying alongside the truck. Larry testified Dr. D. A. Miller physician was Chris’ fol- outside, they got that when him kept Chris 1969, lowing the heart attack in and saw saying, “Nobody cares and I want to die.” frequently from 1969 him to 1973. He saw outpatient both as an and as an inpa- Chris 1969, In Chris suffered a severe heart hospitalized tient as Chris was several times attack and was hospitalized for over a during period for his heart condition. During time, month. this his wife and chil- 1973, by early Dr. Miller testified that he spent dren long hours in the hospital and at psychiatric concluded that Chris needed his bedside. Following attack, this heart help depression because of his and his sui- according to Elizabeth children, cidal tendencies. they noticed disintegration of his mind. They all stated that came to the real- the care of Chris, come under did ization that Chris was sick mentally as well ges- more overt some after psychiatrists as physically. January life. taking his own tures at psy- several he saw February of

Larry Koch testified that he was told by at the Memorial counselors chiatrists and his father many times after 1969 that he and at in Mandan St. Center wanted to Mental Health die and that nobody cared for him. in Bismarck. He Psychiatric said Alexius Service this occurred several times after Chris had heart pains, and often he evaluation of Gaebe, psychiatric in his Dr. refused to be taken to the hospital or to Chris, stated: have his medicine. At times Larry had to “ through- was also evident . . .It force him get help or to take his medi- projection the interview that he uses out cine. quite suspi- degree, that he great to a During time, and at with his wife according angry cious of and Larry, Chris accused his wife feeling being an alcoholic least several and being unfaithful to him. against him. There wife are children and his periods, sometimes for months in duration, thoughts to suicidal admit He does when he would not speak to his wife. hospital In his records St. Alexius The mental health board determined that discharge diagnosis of Hospital is a Chris Chris should not be Shortly committed. 9,1973, by Dr. This February made Gaebe. hearing, after that Chris wrote letters to discharge diagnosis stated: Larry Connie telling them never to depressive reac- psychotic “Involutional again. come April home On tion, feelings with toward his paranoid allegedly executed a will disinheriting his family.” wife and children. March, 1973, Miller, Dr. advised Chris’ Soon divorce proceedings thereafter family voluntarily that would not if Chris and a hearing commenced was held on De- treatment, family to the should seek seek 22, 1973. cember In the time between the family agreed him committed. The to have hearing commitment and December this, decision, carry and to out this do little, there any, was if contact between signed eldest daughters petition two for Chris and the other of the family. members hearing. April health board On a mental hearing held Bur- was before the hearing, At the divorce three children leigh County Health Mental Board. Eliza- support testified in of their mother’s effort Koch two eldest daughters beth and the to secure one-half of the property. After to appeared necessity and testified of a hearing ended on December accord- hospital. to the There were Larry’s ing testimony, and Connie’s there neighbors ap- several and relatives who meeting family was a tearful when against peared and testified commitment. expressed all love children their to their Miller hearing Dr. did not attend the Through father. decree divorce of Jan- sent a letter which stated: 30, 1974, uary each party received one-half “Over the last several patient months the that time property. Between had extremely depressed become and on 29,1976, Chris’ death on October there were many occasions has death verbalized attempts at reconciliation unsuccessful wishes to me. de- Because his severe between Chris and Chris Elizabeth. also

pression and because recurrent obses- thoughts spent sive time that his wife was some with each unfaith- ful to him his family and that was un- 11, 1974, during period. On March recurring faithful him and expressions signed Chris the will and testament which wishing to die he was admitted to the being will, is contested in this case. Alexius Psychiatry St. Service on Febru- specifically he spouse excluded his former 4, 1973, ary under care of Dr. Gaebe. gave property and children and to his Since that time he has intermittently brother, brother-in-law, sisters. been followed Dr. Gaebe at the Memo- testimony There was also from several rial Mental Health Center but the patient persons, that Chris was able to function improvement has shown no and has well society. neighbors thought His resistence to treatment has shown completely broken he was going competent, appar- off Mental Health Center help. He has to be continued ently knowledge had no prob- of his mental extremely feeling he depressed is lems and suicidal tendencies. Chris told present living in hell at the time and that people, several after hearing, divorce against family is all him. His re- that his children had sided with their moth- to his wife peated regard statements er him against at the commitment and inability her to care for him and feel- divorce proceedings. He also told several ings having that she is affairs with other people that he thought the commitment whenever leaves the have men she home proceeding commenced his mon- caused his wife to have an acute mental ey. spent break wife herself. His a week Peters, Dr. Clifford who treated Chris’ past Alexius Hospital St. week due to 4, 1973, heart until April condition anxiety acute severe reaction related death, to Chris’ at home.” appeared behavior Chris’ Chris testified that to him. He testified perfectly rational It is from the judgment rendered on those capacity quite adequate mental Chris’ is taken to this court. any no indication of and that he found question confronting The first us is our he testified psychosis. Finally, that Chris’ scope of review in this case. We have said might have been in- previous difficulties past question of whether a heavy duced medication that he was laboring testator is under an insane delu taking for his heart condition. then materially sion which affects the will is a Rask, In re Estate question of fact. Tschider, legal who did Morris work for (N.D.1974); Kingdon Sy N.W.2d 525 including preparation Chris of the will brant, (N.D.1968). We question, testified that knew what apply have also stated that we will owned, worth, he what it was who his fami- N.D.R.Civ.P., 52(a), finding to this of, ly doing consisted and what he was at therefore, unless the the time of execution of the will on erroneous, clearly the decision of the trial testify March 1974. He went on to that finding court based on that will be sus thought Chris told him that he the mental Rask, supra. In re Estate of tained. hearing step was the first Tschider, who the divorce. testified that he In this case we have a situation legal did work for Chris from 1965 until his county where both a court and a district death, also stated always that Chris was Normally, court heard this case below. completely competent very and was intelli- occurs, court is to determine when this gent. findings ap whether the of the last court In re pealed erroneous. clearly from died, objection After to Rask, and In re Estate of supra, Estate of of his will on was filed behalf of the chil- Elmer, Thus, (N.D.1973). 210 N.W.2d 815 dren on November 1976. The matter normally, apply clearly we would erro 19, 1976, by was heard on November N.D.R.Civ.P., 52(a), neous test of Rule to Burleigh County juris- court with increased findings of fact of the district court. 30,1976, By diction. order dated December the county court determined this will that However, spe in this case there is a was null and void for want testamentary problem parties stipulated cial as the that capacity, and that it was not entitled to be county from the decision of the probate. admitted to The appellants in this presented court would be to the district action served appeal, notice of and subse- court on the basis of the record from the quent thereto parties entered into a county apply 52(a), court. Do we now Rule stipulation dated March 1977. In this N.D.R.Civ.P., finding of fact to stipulation, parties agreed the ap- will district that Chris Koch’s was a peal presented judi- would be fourth delusion, product of an insane when that Burleigh County cial district court in on the solely of the district court rested on basis of the the county record from court. evidence, documentary i. e. the record of 4,1977, May On the district court concluded court? that the will and testament of the decedent great split among There is the state testamentary was null and for want of void among the federal courts courts and as to capacity. applicability of Rule in these situ- fact, pertinent findings part 52(a) applies ations. One view is that Rule law, judgment, conclusions of and order for even when the trial court’s reads: solely documentary are based on evidence. and Testament

“The Last Will of Chris Miller, See Wright & Federal Practice Koch March 1974 is the Geo. dated Procedure: Civil 2587. A second view is § product of an insane delusion and the 52(a), apply does not property way in a decedent devised solely documentary of fact based evi- delusions, which, except for the dence. See 5A Moore’s Federal Practice he would (2d.ed.) ¶ not have done.” 52.04. In that case Auto. & Cas. Under the testator Dolajak gave property State to a re

writers, (N.D.1977), 252 N.W.2d sister and a niece and excluded from his by adopt will, sisters, brothers, in North Dakota this issue four two solved and his fa- by Moore’s Fed expounded ing position alleged ther. The contestants that the tes- decision, we dis eral Practice. testamentary tator lacked capacity due to 52(a), N.D. of Rule applicability cussed the an insane delusion that his relatives were in that and stated: R.Civ.P. trying get property him, from the evidence con- trying “We conclude to starve him. This the trial court consisted of sidered court held that the testator was not suffer- this court documentary evidence ing from an insane delusion and went on to reading and under- capable of is as say: documentary evidence as is standing the of the opinion “We are the appellants court, and that this court there- the trial would have to much further prove 52(a), to follow Rule required is not fore that what was claimed to be an insane NDRCivP, such circumstances.” under is, delusion —that that his relatives were 182. 252 N.W.2d at striving all property work v. Meisner & also Bach Mill Co. See false; him —was in fact that such state- (N.D.1975), for a simi ments of the testator with reference holding.

lar thereto had no basis in and were not Supreme Court has The United States founded in reason or probability; in the two-court rule to the a solution found the matters claimed to constitute a delu- facing Mfg. us. In Graver Tank & dilemma existence, sion had no real but pure- 271, Products 336 v. Linde Air U.S. Co. product aly imagination. of the It would 535, 93 L.Ed. 672 the Su- 69 S.Ct. seem, if any evidence, there were even Court, certiorari, on a writ of heard preme though inconclusive, slight or which may the Court of case in which United States a have contributed to the belief by held one the of a upheld part of Appeals claimed to be afflicted delusion, with the patent that a District Court United States then his belief cannot be said to be a affirming the infringed. was valid Gerwien, delusion.” Edwardson v. supra Supreme States circuit United at 103. said: Court The second North dealing Dakota case law, is, as this “A court of such Court with insane delusions was Kingdon Sy v. for correction of er- than a court rather brant, supra. alleged case the in finding, cannot undertake to rors in fact sane delusion was that the testator’s first two concurrent review wife was unchaste and that daughter very of a below in absence courts was, therefore, illegitimate. This court did er- exceptional showing of obvious and to the merits of that but 275, 538, 69 at 93 at S.Ct. ror.” U.S. granted grounds a on the new trial L.Ed. at 677. prejudicial erroneous and instructions were also United States v. Reliable Transfer See given did, at the trial level. This court 397, 401, 1708, Co., Inc., 421 95 S.Ct. U.S. however, set out the substantive law to be 251, 1711, (1975); Bere 44 L.Ed.2d 256-257 followed in syllabus. North Dakota Director, Serv., Imm. Nat. nyi v. District & “1. There is presumption a that a tes- 17 L.Ed.2d 385 U.S. S.Ct. at the tator sane time of the execu- (1967). will, contrary tion of his until the appears case, what that rule to this Applying by competent proof, and where one is do find? contesting proof of a will on the basis suffering testator was from been three North Dakota There have delusion, with insane it is not past dealing insane delu- sufficient cases in v. introduce evidence which tends prove case was Edwardson The first sions. Gerwien, possessed N.D. 171 N.W. 101 testator was such a further

delusion, should be dent’s belief. It is a classic but there case of the fulfilling prophesy. that such delu- self by the contestant Because of his proof beliefs, proba- in fact or in the decedent cut has no foundation himself off from sion family the delusion is and thereafter in order to show that considered this bility imagination. ‘proof’ status as that he product a was uncared for wholly unwanted. un- laboring a testator is “2. Whether materially “It is clear to me insane delusion which decedent’s der an feelings produc- toward his children were generally question the will is affects ground ed beliefs held and to defeat a will on decedent which testamentary ca- were unfounded in fact and that these that the testator lacked delusion, it is beliefs were the reason decedent ex- pacity of an insane because objects bounty the testa- cluded his natural not sufficient to establish that delusion, of such will. tor was the victim the evidence must further estab- “I conclude therefore that the Last will product the will itself was the lish that and testament of the decedent is null and delusion and that the testator de- testamentary capacity void for want of which, property way except vised his in a the same is not entitled to be delusion, for that he would not have probate.” admitted to Kingdom Sybrant, supra done.” at The district court on after review- ¶¶ Syl. 1-2. record, ing the also stated that the Last Rask, The third case was In re Estate of and Testament of Chris Koch was a Will supra. In that case we held that the testa- delusion, product of an insane and the dece- will was the of an tor’s insane which, property way dent devised his in a daughter. that his niece was his delusion delusions, except for he would not have ages, of their Because closeness done. not have testator could been father of appellants, will, proponents of the Furthermore, his niece. there had been no contend that the and district courts long-standing relationship close between erred in their of fact. They con- and his niece. This in the testator tend that will product Chris’ was a finding that the will was the result of an feelings family toward the members of his delusion, followed the law as set out insane be, in upon based fact what he believed to syllabus paragraphs Kingdom. 1 and 2 of in rightly or wrongly, disloyalty their and dis- Dakota is therefore The law North interest toward him. They stressed the im- delu- quite clear as to effect of insane that the mental pact hearing commitment problem knowing The comes not in sions. and the divorce proceeding had on Chris. law, applying but in the law to the facts In the commitment hearing, two of his chil- where it is asserted the insane of this case commitment, dren testified for and in the preceded any possible factual ba- delusions hearing, divorce three of the children were the disinheritance. sis for by called his attorney. wife’s In neither proceeding any did testify applied The court this law to the mind, on Chris’ behalf. At least in Chris’ case, and in its memorandum facts of the children had sided with their mother opinion, stated: against This, him in proceedings. these sequence just “The of events described claim, appellants is sufficient to show sadly ironic. When the decedent’s chil- is that Chris had a factual basis for his belief attempted to have him committed dren that against his children were him. This treatment, it had the effect of rein- belief, they argue, is wholly therefore not forcing paranoic beliefs that his chil- imagination, Chris’ against supported were all him and dren therefore cannot be an insane delusion. pursued mother. When he the di- their vorce, support argument, the children testified on behalf of In of this the appel- again Hnot, mother which fueled the dece- lants cite Estate of Karabatian v. 17 541, (1969), Mich.App. the testator was not suffering from a 455, Estate, Millar’s 167 Kan. 207 P.2d delusion In re the children were opposed to Karabatian, the court held him. support For statement, of this court suffering pointed was not from an out that the testator that the children had tes- when he wrote a will tified for their delusion leav- mother at a insane divorce hearing contestant, this was attorney. an sufficient ing out basis for the testator’s stated, belief. support finding, of this court that: Finally, the appellants argue that even if “Although attempt contestant did not Chris did suffer delusions, from some insane place asylum, decedent in an insane there is proof no these delusions ample factual basis from there existed affected his 11, will executed on March reasoned, may which decedent have even appellants 1974. The stress the fact though incorrectly, attempted that he had report the last from a psychiatrist was in having clearly

to do so. Contestant es- February Furthermore, 1973. they claim tablished, disproved, rather than the ex- that there is not proof sufficient that Chris’ istence of a factual basis for decedent’s alleged delusions themselves affected belief, there remained no fact to be sub- the will. jury.” mitted to the 170 N.W.2d at 168. In support appellants’ argument support appellants’ Further for the argu- Rhoades, McGrail v. (Mo. 323 S.W.2d 815 proceeding ment the commitment 1959). the court in discussing supplied this case a factual basis for Chris’ the substantive law concerning insane delu children can be beliefs about his found sions, said: 882, 907:

175 A.L.R. “But, the mental error must have actual “Frequently relatives are disinherited ly operative been production they an eccentric testator because instrument, act, in the testamentary brought have at some time although there was a delusion if the tes guardianship proceedings against or him. tator was in fact motivated other ra Ordinarily, resulting animosity, even tional reasons his may will not be set expressed in such accusations as that aside because of monomania. Lareau v. were trying property away Mo., Lareau, 241; 208 S.W. Benoist v. 323-324; Hall him, him, or had no affection for Murrin, 307, 58 Mo. v. Mer cannot be found be insane delusion. cantile Trust 332 Mo. 59 S.W.2d (1933), Re Lacroix 265 Mich. 251 N.W. 664.” 323 S.W.2d at 821. 319; Re 271 Mich. Lake The real difference in the instant case (son); (1941) N.W. 779 Re Balk 298 Mich. then, between appellants’ view and that (children).” N.W. courts, of the county and district is the Estate, In re supra, The case of Millar’s effect of the commitment and divorce hear- effect the testify- deals with the of children ings. The appellants argue they sup- that ing against their father in a divorce hear- ply basis, the factual rightly or wrongly case, the court held that ing. In that the reasoned, for Chris’ belief that his children suffering testator was not from an insane against courts, were him. The two lower against his children were delusion that him. however, concluded that Chris was suffer- The court stated that from the record it ing from insane delusions before these hear- the appeared that testator mistaken in ings, hearings and that these simply rein- daughters his belief that his two had turned forced the decedent’s unfounded belief or him, against pointed to the fact that unappreciated delusion that he was by his daughters had sided with their mother family. hearing at a divorce as a basis for the record, From our review of the we be- testator’s belief. lieve that finding concurrent Cline, A similar case is Bain v. 24 Or. lower courts that the insane delusions exist- 33 P. 542 in which the prior court stated ed to the commitment and divorce preponderance The court’s hearings supported finding, apparently psychiatric reports, confirmed the district of the evidence. Miller, testimony Dr. and the testi- of the children testimony of at the commit- proceedings and the children of the ment and the divorce

mony of Elizabeth should provide marriage, supply a basis for that not a factual basis for Chris’ belief very against could reason- the children were sup- fact. The lower courts him is ported by belief that his case law ably have found that Chris’ from other states. against him had no foundation family was point Dumas, A case in is Dumas wholly a probability in fact or in (Ark.1977). S.W.2d 417 That case involved imagination. product of Chris’ attempt by daughter and ex-wife of so, decide whether or being That we must the decedent to set aside a will and a deed product this will was a of that insane ground on the they products were delusion, or not devised and whether an insane delusion. The decedent had been which, way except for the property his suffering from delusions that the members delusion, he would not have done. Both family against church and his were lower courts concluded that the will was a daughter proceed- him. The had initiated product of Chris’ insane delusion that his ings which led to her father’s commitment him, against he de- children were period in 1969 for a of time. The court which, way except in a property vised his opinion, daughter, stated its “His appar- delusion, he would not have done. for the him, ently very devoted to tried to him help, medical and he turned on her.” 547 evi- We conclude that there is sufficient Later, at 418. S.W.2d the wife divorced the support dence in the record to the concur- divorce, decedent. A month before this findings of the two lower courts that rent father executed the will disinheriting his insane product the will was a Chris’ daughter. Despite this pro- reasonably delusion. The courts could have ceeding divorce, and the pending the Ar- that, found and did find but for insane kansas court held that there was no basis in delusions, hearing the commitment and the fact for the feelings against decedent’s proceeding not have taken divorce would family, and therefore held that the will was place at all. The children of Chris product of an insane delusion. wife, Elizabeth, reasonably could have con- had no other choice but to cluded Another supportive case of the lower hospital seek a commitment so that Estate, courts’ is In re Mahnke’s Chris could receive treatment. There was Wis.2d also sufficient evidence in the for the record daughter objection filed an that, lower courts to conclude but for Chris’ probate of her father’s will on the basis delusion, proceeding insane the divorce the will was a of an insane place. would never have taken delusion. The delusion involved in that case was neglect decedent’s belief that record, review From our find of a doctor caring for his wife caused her no other factual basis for Chris’ belief that daughters death and that his had commit- against his children were him. The record perjury ted malpractice against suit discloses concerned the doctor. The court father, found that that delu- notwithstanding for their his view sion affected decedent’s will in which he their interest in him. The lower courts expressly made no provisions daugh- for his very reasonably thus have could found and ters. In its opinion, the court stated: did so find that the reason the natural objects (his children) bounty of Chris’ were “There is no evidence from which a will, solely excluded from his was that at sane mind could draw the conclusion of will, murder, executing office, the time of Chris was malfeasance in perjury, suffering from an attempted insane delusion. This blinding attempted mur- supported by der, ‘whitewash,’ is preponderance suppression evidence, of of the evidence. and the whole line of accusations made re- the district testimony and letters not for the him as the reason stated is no There majority in evidence discloses. ceived because the district mind could which a sane findings evidence of court’s fact were not clearly conclusion that his the further draw erroneous. It was not demonstrated that disloyal daughters ungrateful were findings the district court’s of fact were warped to share his they failed because without substantial evidentiary support nor There is no doubt reasoning. view and findings those were induced estrangement that existed whatever 52(a), erroneous view of the law. Rule N.D. and the fa- daughters between the three R.Civ.P.; Fine, Fine v. 248 N.W.2d 838 with the formulation is coincident ther (N.D.1976); Industries, v. “L” Stee Monte he harbored. of the delusions his mind Inc., (N.D.1976). also, See not and he could He could not understand Castle, Corp. Pettibone Minnesota v. not accom- that a sane mind could reason (Minn.1976). N.W.2d 52 he held and the wild modate the beliefs The district court tried this case without In re Mahnke’s he made.” accusations and, a jury required by 52(a), as N.D. Estate, at 408. supra R.Civ.P., specially it found the facts reasoning the Wisconsin court also of separately its stated conclusions of law the children did in this case. Here applies findings thereon. From the I am along with the insane delusions not a clear understanding able obtain mother was an alco- their their father basis for the trial court’s conclusions. See men, and that holic, with other ran around Cooperative Ellendale Farmers Union Ass’n go- him. Instead of against everybody Davis, v. (N.D.1974). 219 N.W.2d delusions, three chil- these ing along with giving regard or without With due at of their mother testified on behalf dren opportunity judge judge of the district Mahnke, hearing. Just as the divorce witnesses, I credibility could in this case the children testimony of reach no other conclusion than that those wanted to hear. It the father was not what findings clearly are erroneous. Mahnke, that, just as in follow also should judge print, “If were to from the cold should not we of the children testimony might many differently for Chris’ belief decide cases a factual basis provide do, The fact that against judges him. they might than trial case not share their But, in this case did them. if be one of we decided dif should not be held insane delusions father’s ferently, we would have no assurance against them. that ours was the better decision.” State Olmstead, (N.D. N.W.2d the concur- therefore conclude We 1976). courts that the will findings of the two rent insane delusion and of an accept things I cannot some this Court supported by probate should be denied scope of review and has said about related Find- of the evidence. preponderance years, matters in this or over the nor exceptional error ing no obvious accept appears say can I a doctrine that courts, of the two trial findings concurrent says. that Rule does not mean what it judgment of the district we affirm There was no to this Court from the judg- affirmed the which in effect court and, probate therefore, court judgment county court. ment of the probate none of the court’s or conclusions of law could have been under JJ., VOGEL, PAULSON, con- SAND Nonetheless, by here. a tenuous and attack cur. route, majority opinion tortuous simul- PEDERSON, Justice, concurring special- effect, taneously, reviews ty- court and the district both the pronounces sup- court and wholeheartedly with the results agree I achieved, judgment ported by preponderance of the evi- affirmed the which

664 evidence, good as may com- this court be in strategy was This farfetched

dence.1 court; . . to as the trial situation to determine by a hidebound pelled ” [Emphasis Jasper . v. precedent. added.] 454, 1, (1894). 455 Hazen, 58 N.W. 4 N.D. is two recent precedent bothersome This Hazen, 75, also, 1 N.D. 44 Jasper v. See unanimous by a decided were which cases Hazen, 2 Jasper v. 1018 and N.W. writer): Dolajak v. this (including court 401, N.W. 583 51 Underwriters, N.D. Cas. Auto. & State Bach Millwork and (N.D.1977), N.W.2d 82, This, then, Chapter was the law when (N.D. N.W.2d 904 & v. Meisner Co. S.L.1893, part, upon ap- in provided, concluding that arbitrarily 1975). Without from district courts of causes tried peals wrong, I Millwork Bach Dolajak and jury Supreme Court “shall without who have said legal writers with agree try upon judgment the cause anew such important to formulate dangerous is it de novo continued until 28- roll.” Trial § whole adequate, without precedents 27-32, NDCC, by repealed Chapter of presentation controversial hearted Builders, Trinity Inc. v. S.L.1971. See Dolajak and in If the remarks issue. Schaff, (N.D.1972). 199 N.W.2d collateral dic are more than Millwork Bach effect, 52(a), amend Rule they, 52(a) Shortly when after Rule was amended ta my error in acknowledge the form, said, I have to then this in In present into its Court the future. for seek a correction ways N., (N.D.1972): re A. 201 N.W.2d any do I recall those cases In neither adoption “It is obvious that the of Rule to this issue. directed significant argument 52(a) August of 1971 as an amendment expound proceeded nevertheless We existing designed Rules was to set findings of fact based proper review reviewing questions a new standard evidence, Dolajak, documentary upon gives standard that the trial of fact —a at question it is concluded though judge finality more of decision. The 1971 (252 than of fact one of law was more issue (Senate Legislature session of the Bill Millwork, and, 182), in Bach at N.W .2d 2252) abolished the so-called ‘de novo’ appear reviewed findings of fact though the 52(a) Accordingly, statute. Rule (and of law there conclusions clearly to be amended to conform to the Federal Rule reviewable outside properly fore scope includes the of review “clearly erroneous” confines of strict given the trial N.D.R.Civ.P.). 52(a), Rule rule of court. The Federal [Footnote omitted.] form, 52(a), present its Rule Though applies any civil action tried with- Dakota, the newcomer in North a relative jury exceptions out a save for the a trial proper review of subject of the limitations stated in Federal Rule is not. court’s decision Miller, Wright & Federal Practice and “ a trial . . of fact of . Procedure: Civil 2572.” § jury, of a will not like the verdict comments need to be made about Further appellate court when by an be disturbed Court, the two recent decisions this support in the evi- they have substantial joined majority, which I with the and which and, dence, . . . where says resolved the issues now Court evidence, it will not upon parol is based expounded by adopting position Moore’s disturbed, clearly unques- unless be [Dolajak, supra, Federal Practice and Bach preponderance of tionably opposed to the Millwork, Dolajak supra we said that Tp., ]. Randall v. Burk testimony. question here “we further believe that probative 4. Of the force (S.D.) 57 N.W. question documentary question is more a of law than depositions and value testimony), recently oral but we did not there so far a case in considered 1. This Court any imply probate to district as to preponderance-of-the-evidence that we were concerned about court which the taking judicial rule. See Con- notice of court involved Parker, (N.D.1977). way (although court file there was also

665 And, Millwork, all, in Bach not finding of fact.” bound at and that review is de novo presumption we said that there was no evidence with no in favor of the trial court’s findings findings, certain of fact. where support record to the evidence below was not oral. cases were we com In neither of these [Footnote omitted.]” 41 Minn.L.Rev. at 764. decision, just to reach a to pelled, order Moore, adopt any position to extricate ourselves “Professor who favors broad re- 52(a). view in necessity apply a to Rule the situation from we are discussing, concedes that the distinguished their own intent of Judge Courts have Charles Clark, E. draftsman of Rule rulings other courts’ for lesser reasons. to have ‘clearly erroneous’ apply test Especially authority when we have no to regardless of the nature of the evidence review, a de the function make novo of . .” 41 Minn.L.Rev. at 768. appellate court of the trial court respects “In two the form of the rule as distinguished. must be Even in those situa- finally adopted prohibit seems to any dis- give regard tions where we cannot due tinction between findings based on oral opportunity judge of the trial court to evidence and findings based on docu- (because of witnesses it credibility First, ments. the rule finally as adopted witnesses), obligated saw no we are still positively states the test to be applied, give regard its they due because rather than adopting by reference prior correct, presumptively are and we should standards of review in equity. . not set them aside unless we are convinced Second, Rule 52 says that findings shall clearly erroneous. We should not be set aside unless clearly erroneous grant trial novo reviews calling de regard and due given shall be something them else. opportunity of the trial judge court to part As a on The article Doubtful credibility of the witnesses.” 41 Courts, Appellate Omniscience of 41 Minn. Minn.L.Rev. at 769. (1957),2 Wright, L.Rev. Charles Alan 52(a) does not state: “Findings of Law, Texas, Professor of University of fact shall not be set aside clearly unless wrote about the two views of Rule as erroneous if the trial court has op had an follows: portunity judge of the credibility of the thought “Such rule has been to leave a witnesses.” Even if we concede that question, of considerable interest for our appellate court just good is in as position a purposes, scope as to the of review the “weigh” as trial court to documentary trial court’s cases where the evidence, it does not follow that appel where, documentary, evidence was late court should arbitrarily substitute its therefore, special the trial court had no view for that of the trial court. See Pen opportunity judge ‘to of the credibility of dergrass v. New York Life Ins. the witnesses.’ Some courts have said (8th 1950), F.2d Cir. which held: appellate such a situation the responsibility “The entire deciding court, good being position judge in as questions doubtful fact nonjury case the evidence as was the trial can be, is, should and we think it that of the readily more find the trial court’s find- district court. The existence any ings clearly to be erroneous. [Footnote as to doubt whether the trial court or this Though gloss such a on Rule omitted.] Court is the ultimate trier of fact issues 52(a) may regarded unnecessary be as nonjury is, think, cases we detrimental omitted.], it has at least [Footnote to the orderly justice, administration of being gloss. merit of a sound But then impairs the litigants confidence of courts, reasoning other gloss from the public in the decisions of the district itself, Rule 52 rather than courts, rule and multiplies ap- the number of went say appellate on to that the court is peals in such cases.” also, Stone, Findings Scope Appellate Widened, 2. See Clark and Review of Fact Review Fact, 4 U. of Chi.L.Rev. 190 Stan.L.Rev. 784 we, fact, already seen the effect of Dola going We have to ignore those find- having it been jak lawyers’ arguments, ings on review, and made a de novo reaching that, even with argued now another case our own inferences and conclusions. The significant, which Rule testimony is not majority oral opinion returns us to a reviewing 52(a) apply. should posture prevailed similar to that which be- fore the abolishment of trial de novo and following observation is made at 2B adoption 52(a) the present in its Holtzoff, Federal Practice and Barron form. Procedure, 1961): (Wright at 516 Ed. § rule, language of the “Despite the clear acknowledge 52(a) I that Rule is not uni- Committee, Advisory two Notes versally popular amongst lawyers and pointed expressions from the Su- judges. Judge In Nordbye presented Court, the are indes- preme authorities paper Eighth to the Circuit Conference in cribably confused.” City subject Kansas on the of findings of fact, Michigan and from a commission to justify throwing should not That confusion study procedure he made following with the water. baby out bath quote: Wilhelm, Eichenberger In the cases of “The preparation of findings is (N.D.1976); burden-

244 N.W.2d 691 Ellendale Special some. findings of Davis, when em- Cooperative Union Ass’n v. Farmers ployed, become the (N.D.1974); foundation for the and Warner v. judgment, Johnson, and the evidence (N.D.1973), 213 N.W.2d cannot be looked to as in “adopted” Wright equity Miller cases. explana & It results from this that after purposes 52(a). tion of the behind Rule a case has been prop- erly by proof established that will always In Warner we said: be jeopardized and may frequently be purpose requiring findings “One ruined in process of transcribing it appellate fact is aid the court af- into the findings.” form of Nordbye, Im- fording understanding it a clear of the provements in Statement of Findings of ground or basis of the decision of the trial Law, Fact and Conclusions of 1 F.R.D. purpose court. Another is to make defi- (Mo) at 26. just nite what is decided the case in That criticism apply order to related to estoppel pre- doctrines the need to pare findings, expressed judicata and res in future cases. Finally, views of possibly important, require- Michigan most some lawyers. We have had a pessimistic, similar ments that of fact be made is defeatist reaction from some North lawyers intended to evoke care Dakota part of the in our own courtroom when judge ascertaining discussing trial the application facts.” 52(a) of Rule appellate to the [Emphasis process. added]. appears It to me that there would be no I attribute the fear of Rule to lack purpose requiring preparation care of understanding. Distinguishing between (where the trial court is of fact and a conclusion of law considering only evidence) documentary if always has been a most difficult thing.3 I Still, month, 3. it behooves this Court to exercise the and doesn’t tell what o’clock it is!” greatest “Why of care to be both consistent and cor- should it?” muttered the Hatter. “Does your you year rect in such determinations. addition to watch tell what it is?” “Of obtaining proper not,” parties responded very readily, result for the be- course Alice “but us, provide guidance stays fore year we would needed for that’s because it the same for such a intelligent young long together.” just the bench and bar. An law- time “Which is the case recently us, yer petition mine,” noted to in a with said the Hatter. Alice felt dread- rehearing, fully puzzled. that certain of our comments left The Hatter’s remark seemed to feeling it, meaning him like Alice in yet Wonderland: Alice had her to have no sort of it looking certainly English. quite been over his Mad shoul- [the Hatter] “I don’t under- curiosity. funny you,” said, politely der with some “What a stand she as as she could. day asleep again,” watch!” she “It remarked. tells the “The Dormouse is said the Hat- pretend do not to have an answer to all of see; problems merely I I resist opinion appears

another which to me to add problem. (because of

I could understand Article Constitution)

VII United States

attempt distinguish between the reexa- jury fact-finding

mination we make of judge fact-finding, pre-

trial but we have

sumably abolished that distinction. James Weber,

River Bank v. 19 N.D. Nat.

N.W. 952 What I cannot under- why we practice

stand is should follow a gives dignity less judge’s a trial give than of admin- agencies, solely

istrative because the law- that the

yers stipulated district court could upon

try case the record made in the court. COMPANY,

MOTT GRAIN Plaintiff Appellee,

FIRST NATIONAL BANK & TRUST BISMARCK,

COMPANY OF Appellant.

Defendant and

Civ. No. 9355.

Supreme Court North Dakota.

Nov. 1977. goes saying poured upon It ter and he a little hot without that we should make tea its nose. Carroll, effort but in order to Alice’s Adventures Wonderland & be understood do L. Through Looking may (Lancer Glass that we first need to overcome our own Books 1968). puzzlement. dreadful

Case Details

Case Name: Matter of Estate of Koch

Court Name: North Dakota Supreme Court

Date Published: Nov 10, 1977

Citation: 259 N.W.2d 655

Docket Number: Civ. 9374

Court Abbreviation: N.D.