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In re Estate of Huston

Supreme Court of North Dakota

February 13, 2014

In the Matter of the ESTATE of Virgil N. HUSTON, Deceased.
v.
Virgil N. Huston, Jr., Valarie J. Huston, James J. Huston, Respondents. Wilma J. Russell, Petitioner and Appellee James J. Huston, Appellant.

Page 4

Judith E. Howard and Diane K. Lautt, Minot, N.D., for petitioner and appellee; submitted on brief.

James J. Huston, self-represented, Bismarck N.D., appellant; submitted on brief.

CROTHERS, Justice.

[¶ 1] James Huston appeals fro an order denying his petition to remove Wilma Russell as personal representative of Virgil Huston's estate and from an order denying Russell's petition to determine Virgil Huston's heirs. We dismiss the appeal from the order denying Russell's petition to determine the heirs and affirm the order denying James Huston's motion to remove Russell as the estate's personal representative.

I

[¶ 2] Virgil Huston died intestate in 2000, while domiciled in Wyoming. He was survived by his wife, Russell, and three children from a previous marriage, including James Huston. Virgil Huston's estate was not probated at the time of his death. According to Russell, Virgil Huston's church paid for his funeral and the only known property owned by him when he died was a car worth $200.

[¶ 3] Russell later learned Virgil Huston owned mineral rights in McKenzie County. In November 2012, Russell applied for appointment as personal representative

Page 5

for the unsupervised administration of Virgil Huston's estate, and the district court appointed her as personal representative of the estate. Russell gave notice of her appointment to Virgil Huston's three children, including James Huston, and James Huston requested notice and information relating to the probate of his father's estate. Russell filed an inventory and appraisement of Virgil Huston's estate, identifying eight net mineral acres in McKenzie County with a value of $160 at the time of his death.

[¶ 4] In March 2013, Russell moved under N.D.C.C. § 30.1-21-01 for a determination of heirs and distribution of an intestate estate, contending the total value of Virgil Huston's estate was less than $100,000 and seeking an order distributing all property, including the mineral rights, to her as an intestate share to a surviving spouse under N.D.C.C. § 30.1-04-02(4).

[¶ 5] James Huston petitioned for removal of Russell as personal representative of the estate and for appointment of a special administrator, alleging Virgil Huston's three children were entitled to a portion of the estate, including the mineral rights. James Huston claimed the district court had not been informed that he and Russell each signed March 2005 oil and gas leases for the mineral interests, that a well has been producing oil from his father's mineral interests since January 2012 and that possibly more than $500,000 in proceeds from the well is being held by an oil company in suspense in a trust account. He claimed the estate was worth more than the value assigned to it by Russell and may be worth more than $100,000. He asserted an emergency existed and appointment of a special administrator was necessary to preserve the estate.

[¶ 6] The district court denied Russell's motion for a determination of heirs and denied James Huston's petition to remove Russell as the personal representative. In denying James Huston's petition, the district court explained there was no wrongdoing by Russell necessitating appointment of a different personal representative. The court determined the estate value was $160 when Virgil Huston died and, under the current law of intestacy, the surviving spouse was entitled to the first $100,000 from the estate.

II

[¶ 7] James Huston appealed from the order denying Russell's petition to determine heirs and from the order denying his petition to remove Russell as personal representative and to appoint a special administrator. He argues Russell failed to account for various items of estate property and Virgil Huston's children are entitled to a portion of the mineral rights. Russell responds the orders are not appealable because the district court did not certify them ...


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