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In re Estate of Dionne

September 28, 2009

IN THE MATTER OF THE ESTATE OF ARDIS DIONNE, DECEASED
RANDALL A. DIONNE AND CYNTHIA A. LARSON, PETITIONERS AND APPELLANTS
v.
NORMAN DIONNE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ARDIS DIONNE, RESPONDENT AND APPELLEE



Appeal from the District Court of Mountrail County, Northwest Judicial District, the Honorable Gerald H. Rustad, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

REVERSED AND REMANDED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Randall Dionne and Cynthia Larson appealed from a summary judgment dismissing their petition to void a deed issued by Norman Dionne, as personal representative of the estate of Ardis Dionne, to himself. We hold a distribution agreement for Ardis Dionne's estate, which precipitated the deed, is ambiguous, and we reverse the summary judgment and remand for further proceedings.

I.

[¶2] On November 19, 1998, Ardis Dionne died while residing in Hawaii. She was survived by six children: Linda Lewis; Randall Dionne; Eileen Timmerman; Norman Dionne; Cynthia Larson; and Damian Dionne. According to Larson, Ardis Dionne and her siblings each owned an undivided one- fourth remainder interest in three separate quarter sections of land in Mountrail County, in which Ardis Dionne's mother, Ellen Danielson, owned a life estate. Larson claimed there were discussions about Norman Dionne receiving a 12 acre farmstead and buildings from Ardis Dionne's estate.

[¶3] In November 2000, Norman Dionne was appointed personal representative of Ardis Dionne's estate. In Ardis Dionne's last will, which was found in 2001, she devised all her property to her friend, Jim Goodness. In April 2002, Norman Dionne, Cynthia Larson, and Linda Lewis met with Goodness in Hawaii to discuss Goodness's interest in the land. In preparation for that meeting, three alternative distribution agreements for Ardis Dionne's property were prepared.

[¶4] According to Larson, during the meeting in Hawaii, Goodness agreed that Ardis Dionne's children could take her entire estate as long as arrangements were made for the care of Danielson. Larson claimed the three alternative distribution agreements did not provide for that contingency, and as a result, the parties signed one of the alternatives that described Ardis Dionne's estate's interest in the three separate quarter sections of land and provided in typewritten paragraph 4:

That the personal representative shall deal with the assets of the estate and distribute the estate in the following manner:

a. The estate's interest in all of the above described real estate shall be conveyed to Norman Dionne for $______________.

b. After paying administration expenses and creditor's claims, if any, all of the remaining assets of the estate (including the proceeds from the sale of the land) shall be distributed to James Goodness.

In paragraph 4(a), the parties inserted a handwritten figure of "1.00." In paragraph 4(b), the parties crossed out the name "James Goodness" and inserted a handwritten notation "Norman for maintenance 4/25/02."

[¶5] Larson claimed she realized the alternative signed by the parties would need to be revised when they returned from Hawaii:

I remember writing the words on the Agreement, "Norman for maintenance 4/25/02" to show that Norman [Dionne] would hold all of the money and the property in Ardis' Estate (except the 12 acre farmstead) for distribution to the six children after Ellen [Danielson] died. Norman [Dionne] was supposed to use the money for maintenance of this property during this time. It was never intended for Norman [Dionne] to take it all from Ardis' children.

I signed and initialed the agreement on April 25, 2002, in Hawaii, along with Jim [Goodness] and Norman [Dionne], with the understanding that the 12 acre farmstead would go to Norman [Dionne] and the remaining real property would be held for all of Ardis' children until Ellen [Danielson] passed away.

....

I discussed with Norman [Dionne] that the Agreement would need to be revised to reflect the changes and Norman [Dionne] agreed, and then promised me that he would have [counsel] take care of it when we got back from Hawaii.

[¶6] Later in 2002, Norman Dionne, as personal representative of Ardis Dionne's estate, issued a deed for her interest in all her land to himself in his individual capacity. Danielson died in March 2007. In January 2008, Randall Dionne and Larson petitioned to void the personal representative's deed to himself and to transfer the land back to Ardis Dionne's estate for distribution. Randall Dionne and Larson claimed they signed the distribution agreement under the assumption they were agreeing to transfer only Ardis Dionne's undivided one-fourth remainder interest in the 12 acre homestead to Norman Dionne and they did not understand that the agreement allowed Norman Dionne to transfer all of Ardis Dionne's interest in the land to himself.

[¶7] The district court granted Norman Dionne's motion for summary judgment, concluding the distribution agreement was not ambiguous and clearly contemplated the conveyance of all of Ardis Dionne's interest in the land to Norman Dionne.

II.

[¶8] We review this appeal in the posture of summary judgment, which is a procedural device for promptly resolving a controversy on the merits without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 778 (N.D. 1996); Lire, Inc. v. Bob's Pizza Inn Rest., Inc., 541 N.W.2d 432, 433 (N.D. 1995). Whether a district court properly grants summary judgment is a question of law that we review de novo on the record. Ernst v. Acuity, 2005 ND 179, ¶ 7, 704 N.W.2d 869.

III.

[¶9] Randall Dionne and Larson argue the district court erred in granting summary judgment. They argue the distribution agreement is ambiguous and their consent to the agreement was obtained by fraud. Norman Dionne responds that Randall Dionne and Larson did not plead fraud in their petition and the distribution agreement unambiguously authorizes Norman Dionne to convey Ardis Dionne's interest in all her land to himself.

[¶10] A decedent's successors may agree in a written contract executed by all who are affected by its provisions to alter the interests to which they are entitled under a will, and the personal representative shall abide by the terms of the agreement. N.D.C.C. § 30.1-20-12. Here, Norman Dionne claims he executed a personal representative's deed to himself under the unambiguous terms of the parties' April 2002 distribution agreement. Under N.D.C.C. § 30.1-18-13, a personal representative's sale of any property in an estate to the personal representative is voidable by any person interested in the estate, except one who has consented after fair disclosure, ...


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