In the Matter of the Estate of Leonhard F. Feldmann, Deceased
Shannon Evans, Respondent and Appellant Gerald O. Feldmann, Former Personal Representative and Personal Representative of the Estate of Dena Feldmann, Petitioner and Appellee and Karlice E. Valencia and Dena Feldmann, deceased, Respondents and American Trust Center, Successor Personal Representative, Respondent and Appellee
from the District Court of Golden Valley County, Southwest
Judicial District, the Honorable Rhonda R. Ehlis, Judge.
O. Feldmann, petitioner and appellee, (on brief).
A. Selinger, Dickinson, ND, for respondent and appellant
Timothy G. Richard (argued) and James R. Maring (on brief),
Fargo, ND, for American Trust Center, Successor Personal
1] Shannon Evans appeals from an order granting Gerald
Feldmann ownership of certain property from Leonhard
Feldmann's estate. We affirm, concluding the district
court did not err in finding an inter vivos gift and did not
err in finding the proceeds of the standing crop passed with
the devise of real property.
2] In 2004 Gerald Feldmann and his father, Leonhard Feldmann,
arranged for Gerald to farm his father's land using his
father's equipment and for his father to keep the
proceeds. Leonhard Feldmann's daughter, Karlice Valencia,
testified she overheard a phone conversation in 2009, after
which Leonhard told her the farm equipment was "all
Gerald's now." Leonhard Feldmann died testate on
September 4, 2011, leaving the majority of his wheat crop
unharvested. He was survived by Gerald Feldmann, Karlice
Valencia and another daughter, Shannon Evans. Leonhard
Feldmann's will devised his tangible personal property to
the residuary estate, from which Shannon Evans and Karlice
Valencia inherited, and devised certain farmland to Gerald
Feldmann. The tangible personal property clause of the will
referred to an external statement or list, but no list was
found. Leonhard Feldmann's will named Gerald Feldmann as
personal representative. American Trust Center replaced
Gerald Feldmann as personal representative following conflict
among the heirs. The conflict stemmed from distribution of
the farm machinery and the proceeds of the standing wheat.
3] As personal representative, Gerald Feldmann filed the
first inventory in the probate matter on March 23, 2012. That
inventory included "7, 133.31 bushels of wheat
sold" at a price of $58, 272.66 but did not include the
farm machinery and equipment Gerald Feldmann argues was given
to him as a gift before Leonhard Feldmann's death.
Shannon Evans alleges the wheat crop was sold through the
estate account and the tax consequences were attributed to
her and Karlice Valencia. Shannon Evans objected to the first
inventory, arguing it failed to include all the machinery.
Gerald Feldmann signed but did not file a second inventory
that included the disputed farm equipment and machinery. He
made an offer to purchase some of the contested machinery to
settle his dispute with Shannon Evans. In 2015, Karlice
Valencia attempted to resolve the family conflict by
assigning her interest in the estate to Shannon Evans through
a bill of sale. Shannon Evans petitioned to remove Gerald
Feldmann as personal representative in late 2015. In 2016,
the parties stipulated to American Trust Center as successor
personal representative of Leonhard Feldmann's estate and
formal probate began.
4] The district court found Leonhard Feldmann transferred the
farm machinery to Gerald Feldmann as an inter vivos gift,
thus excluding it from the residuary estate. The district
court also found $55, 821.96 in proceeds from wheat standing
in the field went to Gerald Feldmann as part of the real
5] Shannon Evans argues Gerald Feldmann did not provide clear
and convincing evidence for each element of an inter vivos
gift, hence the district court's ruling is clearly
erroneous. "A finding of fact is clearly erroneous under
N.D.R.Civ.P. 52(a) if induced by an erroneous view of the
law, if no evidence exists to support the finding, or if, on
the entire record, we are left with a definite and firm
conviction a mistake was made." In re Estate of
Hogen, 2015 ND 125, ¶ 36, 863 N.W.2d 876,
reh'g denied (citing Brandt v.
Sommerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144).
"A valid [inter vivos] gift requires  an intention by
the donor to then and there give the property to the donee,
coupled with an actual or constructive  delivery of the
property to the donee and  acceptance of the property by
the donee." Makedonsky v. N.D. Dep't of Human
Servs., 2008 ND 49, ¶ 11, 746 N.W.2d 185 (citing
Bellon v. Bellon, 244 N.W.2d 227, 228 (N.D. 1976);
In re Paulson's Estate, 219 N.W.2d 132, 134
(N.D. 1974); In re Kaspari's Estate, 71 N.W.2d
558, 567 (N.D. 1955); Zeman v. Mikolasek, 25 N.W.2d
272, 279 (1946)). "Where a claim of a gift is not
asserted until after the death of the alleged donor, the
evidence must be clear and convincing of every element
requisite to constitute a gift." Schrank v.
Meade, 145 N.W.2d 514, 518 (N.D. 1966).
6] Here, the district court heard testimony and reviewed
affidavits from Karlice Valencia, weighed Gerald
Feldmann's admissions, noted the absence of both the
external document referenced in the will as well as tax
documents, and considered accusations leveled between Shannon
Evans and Gerald Feldmann. The district court found Karlice
Valencia's testimony about the 2009 phone call more
credible and ruled Gerald Feldmann received the machinery as
an inter vivos gift. This Court does "not reweigh
evidence, reassess witness credibility... or substitute [its]
judgment for the trial court's decision merely because
this Court may have reached a different result."
Hammeren v. Hammeren, 2012 ND 225, ¶ 8, 823
7] We conclude the district court did not err in finding an
inter vivos gift of ...