*1 In the Matter of the GUARDIANSHIP VIERECK, Herman Francis
OF
Incompetent Person.
No. 15449.
Supreme Court South
Argued April July
Decided Taylor Tinan, Tay-
James D. Smith & lor, Mitchell, appellant Valerie Mitchell. Wehde, Douglas John B. G. Fosheim Wehde, Haberstick, Huron, Fosheim & appellee Bates. Everett Stiles, Mitchell, Randolph F. for the Es- tate.
SABERS, Justice. (Mitchell)appeals or- Valerie Mitchell approving der Everett (Bates), guardian of Herman (Viereck). Francis Viereck We affirm. Facts July Alyce petitioned On appointment the court for father, person estate of her over the husband, Bates, Alyce’s ap- Viereck. pointed August 1982. Bates fur- Surety nished a bond. Western accounting and in- Bates filed an initial (of securities) ventory cash and (An additional court on December inventory personal property, other than securities, in Bates’ was included 19,1986.) At the final account filed March *2 accounting, paid on ordered; time of initial interest the annuities as daughters: damages children included the claim for double punitive four and Bates, damages Youngs, Fergu- against denied; Bates Alyce Valerie Ethel was and required Peters; Bates was to son, Virginia son: file a final and and one Vir- days. thirty within gil Ferguson predeceased Ethel Viereck. Ferguson’s Mitchell is Ethel
Viereck. Bates filed a Final Account of Guardian daughter. April 7, March 1986. On a hearing objections was held on the May died on After 1983. executor and to this final account. death, Bates filed his first final account 3,1986, On June the court entered an order September guardian on This was approving account, final guardianship supplemented to later account for certain discharging Bates as and reliev- annuities, gifts, personal property cash ing his bondsman from further liabili- pursuant court order. On December ty. Finally, court ordered Viereek’s estate, executor of Nor- pay any outstanding estate to premi- bond Capital Management Trust Com- west ums owed the guardianship for Bates’ (executor) pany objections filed and moved surety bond. The executor did not for a the court determination first approving the court’s order Bates’ final final account. account but Mitchell did. Following hearing a on December court entered conclu- Mitchell’s Claims February sions on 1985. The (1) that: wrongfully found that Bates distributed damages double should have been assessed daugh- cash and annuities to Viereck’s four against wrongfully distributing Bates ordered him ters to return cash the cash and annuities to the Viereck and annuities to Viereck’s estate with 8V2% daughters, (2) Bates failed to return certain interest. (3) personal property estate, items of 7, 1985, hearing On November (4) final account was Bates held on the executor and Mitchell’s order to and his should bondsman not have been why show cause Bates be held should not (5) discharged, estate should not be contempt failing abide obligated pay outstanding surety previous February order of premiums. bond In its Memorandum Decision Decem- dated AND PUNITIVE DOUBLE
ber the court ruled that: Bates DAMAGES cause failed to the return of interest) (plus cash improperly distribution Mitchell contends that dam given Ferguson; Ethel properly ages against should have been assessed 1. The distribution was as follows: face, liability 30-17-3 on its limits applies SDCL under SDCL 30-17-32 recovery 30-26-3.3 an action through SDCL and double “to guardianships claims that or administrator of the estate ...
She further executor 30-17-8.4 under SDCL lan- were warranted for the benefit of the estate.” This upon Bates’ these claims Mitchell bases guage excludes Mitchell and as indicated cash alleged of Yiereck’s *3 above, conversion the executor has abandoned In its mem- his consent. annuities without appealing. Mitchell’s claim claim not 13,1985, dated December orandum decision damages 30-17-8 for under SDCL the executor’s court discussed the trial statutes,5 footing. The stands on different damages as follows: claim double together, taken do not restrict upon a contingent damages punitive damages are to the executor These claim for assets were guardianship that or administrator of the estate for bene- There by Mr. Bates. relating stolen or alienated to fit of the estate as do those Mr. Bates intended that is no indication recovery. we consider double guardianship of deprive his ward to her claim. Rather, gun in jumped the he
funds. Mitchell relies Matter Es he be- distributing funds to those such of (S.D.1985) Hansen, tate While lieved to be heirs ward. of punitive damages. support to her claim for they not rise do actions were Hansen, In this court affirmed the trial stealing. No of intentional to the level executor of granted. court’s conclusion that the de damage award shall be Likewise, the estate’s as punitive damage award is cedent’s estate mishandled by the sets and wrote: justified evidence. opinion, referee’s memorandum In the the trial court that argued before court, that adopted the trial states apply guardian- 30-17-3 did not
SDCL great he discrepancies were so appeal, Bates conceded ship matters. On they the conclusion that compelled to ap- argument that SDCL 30-17-3 Mitchell’s possibly the result of could not have been pro- probate plies to both discrep- and that the any honest mistake entirely ceedings. This concession does accountings among the matter, however, ancies various because resolve the include, may to the value of such in addition provides: 2. SDCL 30-17-3 thereof, property, exceed the value a sum not to liability or alienation Double to estate for theft damages, in the discretion of as any grant person, letters. If before the before of jury. or court testamentary granting of letters or of adminis- tration, any moneys, steals or alienates of the decedent, part: provides in 5.SDCL 30-17-4 chattels, goods, or effects of a he is administrator, executor, person therewith, any or other If chargeable and liable to an action decedent, com- interested in the estate of the estate for the executor or administrator court, any person plains circuit ... that property so or double the value of the alienated, stolen concealed, stolen, smug- suspected to have is to be recovered for the benefit of the any conveyed away, disposed mon- gled, or of estate. decedent, eys, goods, ... or chattels of the provides: SDCL 30-26-3 person appear judge may before cite such court, [emphasis applicable guardi- added] ... provisions the circuit Decedents’ estate provides part: in anships. provisions of this title relative to SDCL 30-17-5 decedents, appear and person refuses to they so cited so far as relate to “If the the estates examination, to answer such apply pro- or practice submit to an in the circuit touching 30-31, may put interrogatories be to him ceedings chapters under 30-26 to inclu- may, complaint, the court matters of the sive. county jail, ...” him to the ... commit provides: SDCL 30-17-8 provides part: in SDCL 30-17-6 may interrogatories answers be judgment “The said included in Punitive any action in evidence covery property. and read decedent’s In action received administrator, executor, brought by or pending such now or hereafter to recover money, recovery person, of such provided for the decedent or his estate as other chattels_" 30-17-7, inclusive, [emphasis goods, added] judgment 30-17-2 to §§ product part intentional intent became a of her were the estate and Mitchell assets of to secrete was her heir. Despite prior sole estate.. Bates’ agreement Ferguson, neither Mitchell Id. at 854. Ferguson’s nor husband would return the Hansen, argues that As in money. they They claimed were unaware improper distribution of Viereck’s Bates’ any agreement between Bates and Ethel daughters, annuities to the four Ferguson. Therefore, Bates restored wife, and one which was Bates’ $6,250 plus interest to the Viereck estate accountings discrepancies show that pocket. of his out own were alienated. the assets argues to con- intended suggests Bates made funds, vert the the evidence good the distributions faith in accord- shows otherwise and so ance with what he believed be Viereck’s found: *4 testamentary He intentions. stated that he knew the contents of Viereck’s —Bates thought he could cash make provided which for the will distribution $10,- up distributions Viereck’s heirs (Anchor Life) of the National annuities the transfer daughters. to his four daughters agreed Viereck the to it and —In an effort to reduce Viereck’s estate contrary. there was no to the tax, Bates distributed the annuities to personal gain Bates realized from the surviving daughters three without the though “jumped transaction. Even Bates and Viereck’s consent before his death. gun” by distributing the the cash and annu- See infra note 6. ities to heirs Viereck’s before his death —Although Bates claimed he consulted consent, without his it does not that show attorney making the cash his about Bates to steal or his intended alienate distributions, he remained concerned. distinguished As ward’s assets. from (or wife) spoke he his with Hansen, supra, sup- the evidence does not daughters each Viereck before claim Bates port Mitchell’s that intentional- were the distributions made ob- ly Rather, the it converted assets. shows (or agreement their under- tained he mistakes he later cor- that made which standing) that if the court should later rected, anyone substantial harm to without improper, they deem the distributions sup- does himself. but return money. would claim for port Mitchell’s —After the court ordered to re- the court’s denial was within its discre- store annuities tion under SDCL 30-17-8. $6,250 except estate he did so Ferguson, distributed to Ethel which 2. THE IMPROPERLY TRANSFERRED received but refused re- PROPERTY WAS PERSONAL SUF- fund. THE FICIENTLY RETURNED TO accounting, time —By the of the final ESTATE Ferguson distribution Ethel was re- per- turned the estate from Bates’ filed, At the time final account was funds. sonal $6,250 to each of the cash distributions daughters Viereck were restored to indicated, As when the court ordered annuities, funds. The money, promptly return Bates to he equivalent, distributed to their were compliance through daughters, caused daughters except Ferguson Ethel all of the Ferguson except prede- for Ethel who (who at the time the distri- Ferguson was deceased ceased Viereck. Ethel received bution),6 guardi- also returned to the approximate- on December were ly days anship. sixteen her This before death. Viereck, annuity predeceased would revert
6. Bates testified that he did not Ethel distribute Ferguson’s annuities to her heirs because back to his estate. annuity provided contract that if the annuitant 15-6-52(a). illegally that Bates dard. SDCL We will not over- also unless, per- items of Viereck’s turn trial court’s after transferred some evidence, reviewing have not all the we are left with property which been sonal a definite and firm conviction that a mis- estate. These include several turned to the Shewmake, ring, take rings, gold Wiggins Black Hills was made. diamond service, coins, (S.D.1985). china, tea an old N.W.2d a silver The silver service china safe. broken evidence shows Bates was a inventory of Viereck’s are listed retired accountant. When assumed the in the final account. Ac- personal items responsibility Viereck’s home Bates, jewelry all of the cording to personal effects were in a state of possession of the Viereck coins are in the disarray. hearing At the October in Huron. Bates stated that he daughters objections on the executor’s to Bates’ first house, in the basement has the safe account, testified that he did the rea- in Huron. Bates claimed that also personal not include items in the Viereck’s these valuable items son he transferred get first instance because he “didn’t empty protect from house was to far.” was a “saver” who stored possible theft. There is no evi- them from his voluminous records unmarked boxes. intended to steal these dence that Bates family Bates stated that he assumed other items from his ward. help through him sort members would personal up effects and clean The final *5 responsibil- grounds house and but that the coins, jewelry, and safe from omitted the ity solely inventory An fell on him. inventory personal the items. These personal items was included in the final possession items remain the of Bates 19, filed March 1986. The final account Huron, daughters in and Viereck’s South included the return of the cash also The record shows Bates ad the return of the annui- distributions and the vised the executor as to location equivalent. ties or their these items. Bates has accounted improper them. this is an meth are set forth in duties returning od of the to the execu approved SDCL 30-27-30. The trial court tor, the court found no error the execu account. The executor did not Bates’ final appeal. tor failed to Mitchell’s appeal. supports The record the conclusion request final reverse the account and expiration of the that at the proceedings remand for further fails since Bates settled his accounts conformance personal property the has accounted been 30-27-30(3). The evidence does with SDCL may for and the it in executor distribute and firm conviction that not leave a definite accordance with the terms of Viereck’s a mistake was made. We therefore affirm will. final approval the court’s of the account. THE GUARDIAN’S FINAL 4. THE TRIAL COURT PROPERLY DIS- ACCOUNT WAS PROPER GUARDIAN, THE THE CHARGED findings
In its and conclusions en BOND, AND HELD THAT OUT- 4, 1986, tered the June court found that BOND PREMIUMS STANDING accounting proper Bates’ final was in form. THE OF VIER- WERE OBLIGATION approved The final account was and rati ESTATE ECK’S by expenditures fied the court. All 17, May 1983. The died on receipts represented in specifically were the final account on approved trial court accounts, journals, ledgers the Thereafter, 3, of the the assets June Bates submitted to the These court. items came under the control estate part form a of the record. The executor The trial court held executor. appeal did not Bates’ final account. outstanding premiums were bond obligation of estate. Mitchell findings We review the trial court’s shoddy bookkeeping con- “clearly fact under the that Bates’ erroneous” stan-
107
filing
Id.,
delay
395,
tributed
ted.”
Wis. (S.D. Jansma, ably support N.W.2d them. nett v. unani 1983), Morgan, writing for a Justice Court, stated: mous major- made in the reference is the action court’s dismissal of The trial in ity opinion appellant’s brief to the upon adjudication as an operates trial court’s memorandum decision De- 15-6-41(b). dis- Since the merits. SDCL (the 13,1985 gun” “jump the cember memo adjudication as operates missal decision), there is no order in the record merits, appeal reviews this it, course, and, appeal no implementing “clearly findings of fact under the from was taken it. Federal 5 Moore’s erroneous” standard. Lastly, I am offended Bates’ conduct We 41-196 to 198. Practice at 41.13[4] § apparent cavalier attitude toward his deter- of law to review the conclusions responsibility under the oath undertook they in as a are error mine whether However, guardian. showing is in- of law. matter sufficient to establish that the trial court determining on a scope a of review In clearly Apparently, was erroneous. most law, “mis- may dub it a conclusion of one returned, has now been impression take of law” or “mistake exception gold Hills of some Black a law principles” or legal “conclusion[] coins, rings, china. The trial It all in error as matter of law.” ... my opinion, ordered them should have concept. boils down to same turned, failed so in its but to do order. Appellant standing here has no raise result). MILLER, (concurring Justice issue, and, unfortunately, the estate below, only stated I con- For reasons can appealed. has not opinion. majority in the result of the cur primary issue around the centers I am authorized to state Circuit the court refusal of to award joins Judge YOUNG in this damages. not This court should concurrence result. properly the issue since it address preserved presented or to us for following reasons: Approving
The Order Final Account 3,1986 (the appeal)
June order on makes
reference whatever to double *7 damages merely Final Ac- approves the —it LEE, Appellant, Grievant and Vince count, discharges and makes obligation bond the estate. DAKOTA DEPARTMENT OF SOUTH
2. HEALTH, Respondent Appellee. findings of conclusions of fact and No. 15551. Final Approving law Order Supreme Court of South entered no reference Account was makes damages. or double Argued April July Decided fact, proposed findings conclu- law, appellant make sions order of
no reference to double or dam- although
ages, there is a statement * (S.D.1982), Weyauwega quoted approval decision in Hart four-to-one authored Forestry Morgan. pence Camp, v. Youth Justice