Mary Ann Vig, as Personal Representative of the Estate of Junietta W. Swenson, Deceased, Plaintiff and Appellant
Willis G. Swenson, Defendant and Appellee
from the District Court of Divide County, Northwest Judicial
District, the Honorable David W. Nelson, Judge. AFFIRMED.
M. Conroy, Bottineau, N.D., for plaintiff and appellant.
D. Olson, Williston, N.D., for defendant and appellee.
1] Mary Ann Vig, as personal representative of the Estate of
Junietta Swenson, appeals from an order  dismissing the
Estate's action against Willis Swenson. The Estate argues
that Junietta Swenson lacked capacity to execute a July 5,
2012, quit claim deed conveying her home in Noonan to her
son, Willis Swenson, and that he converted rent and grain
proceeds when he subleased her farmland. We conclude the
district court did not clearly err in finding Junietta
Swenson was legally competent to execute the quit claim deed,
or in finding that Willis Swenson did not convert the
proceeds of a sublease of land he leased from Junietta
Swenson. We affirm.
2] The issues in this appeal involve a dispute between Willis
Swenson and other adult children of Robert and Junietta
Swenson about the ownership of the Noonan home and the right
to the proceeds of leases of agricultural land. According to
Willis Swenson, he moved back to North Dakota from Minnesota
in 2001 to help care for his ailing father, and after his
father's death in March 2005, he was primarily
responsible for the care of his mother.
3] Before Robert Swenson's death in 2005, the parents had
rented their farmland in Burke County to a third party for
$20, 016 per year. In July 2008, Willis and Junietta Swenson
entered a handwritten agreement for Willis Swenson to lease
the farmland from Junietta Swenson for $20, 016 per year
"continuing for the term of fifteen (15) years until
October 15, 2024." In October 2008, Willis Swenson and
Kyle Mahlum entered into a five-year lease to cash-rent part
of the farmland for $26, 667 per year and to sharecrop the
remaining land. After operating under that lease for one
farming season, Willis Swenson and Mahlum executed a written
agreement on December 16, 2009, to cash-rent the farmland for
a total annual rent of $31, 022.50. Mahlum farmed the land
and made payments under that lease in 2010, 2011, and 2012.
Meanwhile, on November 4, 2011, Willis and Junietta Swenson
executed another lease for the farmland "during the
seasons of 2012 through 2022." That lease required
Willis Swenson to pay Junietta Swenson a total of $20, 016
per year for cash rent.
4] On March 13, 2012, Junietta Swenson was admitted to a
nursing home as a result of her declining medical condition,
including chronic heart and kidney failure, macular
degeneration, and diabetes. Some family members thereafter
discovered that she had sold some of her dividend-producing
stocks on March 14, 2012, by a telephone call initiated by
Willis Swenson to her broker, and she had executed a quit
claim deed conveying her Noonan home to Willis Swenson on
March 15, 2012. According to those family members, Junietta
Swenson had no recollection of selling her stocks and did not
authorize Willis Swenson to make any transactions with her
5] On March 28, 2012, the district court granted a petition
for a temporary guardianship and conservatorship for Junietta
Swenson for ninety days, naming two of her children, Vig and
Lee Alan Swenson, as temporary guardians and conservators.
The temporary guardianship and conservatorship expired on
June 25, 2012.
6] In April 2012, the State charged Willis Swenson with
exploitation of an elderly adult under N.D.C.C. §
12.1-31-07.1. As a condition of bond, the district court
ordered Willis Swenson to have no unsupervised contact with
his mother and to execute a quit claim deed reconveying the
Noonan home to her. Willis Swenson reconveyed the Noonan home
to his mother on May 25, 2012.
7] On June 22, 2012, Lee Alan Swenson petitioned for a
permanent guardianship and conservatorship for his mother,
alleging she was subject to undue influence by certain family
members and was incapable of managing her financial affairs.
After a July 11, 2012, hearing, the district court found
Junietta Swenson was an incapacitated person and appointed
Lee Alan Swenson as her permanent guardian and conservator on
July 12, 2012.
8] Meanwhile, on July 5, 2012, Junietta Swenson executed a
quit claim deed, again conveying her Noonan home to Willis
Swenson. According to Vig, Willis Swenson's
"significant other, " Marilee Nelson, procured
Junietta Swenson's signature on the deed while visiting
her at the nursing home. The deed was recorded by the Divide
County recorder on February 13, 2014, after Junietta Swenson
died in November 2013.
9] The Estate sued Willis Swenson, alleging the July 5, 2012,
quit claim deed was void because Junietta Swenson was
incompetent to execute the instrument, and seeking an order
requiring Willis Swenson to reconvey the Noonan home to the
Estate. The Estate also alleged that Willis Swenson's
subleases of Junietta Swenson's farmland to Mahlum
constituted conversion of rent and grain proceeds that should
have been paid to her.
10] After a bench trial, the district court dismissed the
Estate's action, ruling that Junietta Swenson's clear
intent was to convey the Noonan home to Willis Swenson, that
an April 2013 video of Junietta Swenson explained her
decision to deed the home to him, and that from the entire
record, it appeared the deed was for Willis Swenson's
past services to his parents. The court determined Junietta
Swenson was legally competent and was not suffering from a
disability when she executed the July 5, 2012, quit claim
deed conveying the Noonan home to Willis Swenson. The court
also ruled there were no legal grounds to question the terms
of the farm leases between Junietta and Willis Swenson, there
was no question she was competent when the leases were
executed, and she was aware of Willis Swenson's subleases
with Mahlum and was "OK" with the amount of rent
she received from Willis Swenson.
11] The Estate argues the district court erred in finding
Junietta Swenson was legally competent to execute the July 5,
2012, quit claim deed conveying her Noonan home to Willis
Swenson. The Estate argues that the court's conclusory
findings do not provide an understanding of its decision and
that the court misapplied the law regarding capacity to
execute the deed because the court's decision cited no
legal standard for capacity and mistakenly relied on Junietta
Swenson's intent. The Estate also contends there is
insufficient evidence to support the court's decision,
because the time line for the temporary and permanent
guardianship and conservatorship proceedings during the
period when the deed was executed is instructive and leaves a
firm conviction the court made a mistake.
12] Before a court may set aside a transaction on the ground
of mental incapacity, the party attacking the validity of the
transaction has the burden to prove the grantor, at the time
of the transaction, was so weak mentally as not to be able to
comprehend and understand the nature and effect of the
transaction. Estate of Wenzel-Mosset v. Nickels,
1998 ND 16, ¶ 13, 575 N.W.2d 425; Matter of Estate
of Nelson, 553 N.W.2d 771, 773, (N.D. 1996); Slorby
v. Johnson, 530 N.W.2d 307, 309-10 (N.D. 1995);
Runge v. Moore, 196 N.W.2d 87, 102-03 (N.D. 1972);
Lee v. Lee, 70 N.D. 79, 84, 292 N.W. 124, 126-27
(1940); Meyer v. Russell, 55 N.D. 546, 575, 214 N.W.
857, 869 (1927).
13] In Runge, 196 N.W.2d at 103 (quoting
Lee, 70 N.D. at 84, 292 N.W. at 126), this Court
discussed the development of the law for the analysis of
competency to execute a deed:
"The test of capacity is laid down by this court several
times. In Nelson v. Thompson, 16 N.D. 295, 301, 112
N.W. 1058, 1060, this early rule, deduced from Jackson
[ex dem. Cadwell] v. King, 4 Cow. N.Y. 207, 15 Am. Dec.
354, 355, was adopted: Upon the question of incapacity to
render a deed invalid, the court must be satisfied that the
grantor was not in a situation to transact that particular
business rationally... not, on the one hand, that he should
be capable of doing all kinds of business with judgment and
discretion, nor, on the other hand that he should be wholly
deprived of reason, so as to be incapable of doing the most
familiar and trifling work. That, if the mind and memory were
in such a situation at the time of executing the deed as to
render him wholly incompetent to judge of his rights and
interests in relation to that transaction, the deed would be
"In Meyer v. Russell, 55 N.D. 546, 214 N.W.
857, we say: Impairment of faculties by disease or old age
will not invalidate a deed, provided the grantor fully
comprehended its meaning and effect, and was able to exercise
his will in executing it.'
"Again: Before the court will set aside a conveyance on
the ground of mental incompetency of the grantor, it is
necessary to show that the grantor, at the time of the
execution of the instrument, was so weak mentally as not to
be able to comprehend and understand the nature and effect of
the transaction involved.' Nordby v. Sagen, 64
N.D. 376, 252 N.W. 383.
"Old age alone does not affect competence, even though
the mind may be weak and impaired compared with what it has
been, and even though the capacity to transact general
business may be lacking."
14] A district court's finding on capacity, or lack of
capacity, is a question of fact. Estate of
Wenzel-Mosset, 1998 ND 16, ¶ 14, 575 N.W.2d 425;
Estate of Nelson, 553 N.W.2d at 773. We will not set
aside a district court's finding of fact unless it is
clearly erroneous. N.D.R.Civ.P. 52(a); Estate of
Nelson, at 773. A finding of fact is clearly erroneous
if it is induced by an erroneous view of the law, if no
evidence supports it, or if, on the entire record, we are
left with a definite and firm conviction a mistake has been
made. Id. In a bench trial, the district court
determines credibility issues, which we will not second-guess
on appeal. Buri v. Ramsey, 2005 ND 65, ¶ 10 693
N.W.2d 619. "We do not reweigh evidence or reassess
credibility, nor do we reexamine findings of fact made upon
conflicting testimony. We give due regard to the trial
court's opportunity to assess the credibility of the
witnesses, and the court's choice between two permissible
views of the evidence is not clearly erroneous.'"
Id. (quoting Akerlind v. Buck, 2003 ND 169,
¶ 7, 671 N.W.2d 256). A court's findings of fact
must reflect the basis of its decision and enable this Court
to understand its reasoning. Carlson v. Carlson,
2011 ND 168, ¶ 19, 802 N.W.2d 436. Findings of fact are
adequate if we can discern the court's rationale for its
15] The district court's findings are sparse and could
have been stated with more particularity. Although there were
temporary and permanent guardianship and conservatorship
proceedings involving Junietta Swenson and criminal
proceedings were brought against Willis Swenson for his
conduct with his mother around the time frame of the July 5,
2012, quit claim deed, we reject the Estate's claim that
those circumstances compel a finding that Junietta Swenson
lacked capacity to execute the quit claim deed. The July 5,
2012, quit claim deed was executed after the temporary
guardianship and conservatorship had expired in June 2012 and
before the order for a permanent guardianship and
conservatorship on July 12, 2012. Under the temporary
guardianship statute in effect in 2012, "[a]ppointment
of a temporary guardian is not evidence of incapacity."
N.D.C.C. § 30.1-28-10(2) (2011) (current version at
N.D.C.C. § 30.1-28-10.1. The deed was executed after a
licensed social worker had observed Junietta Swenson in the
context of the permanent guardianship and conservatorship
proceeding. The social worker's report states she
interviewed Junietta Swenson on July 3, 2012, two days before
the quit claim deed was executed, and observed Junietta
Swenson was orientated and passed all competency tests
performed by the worker. A video of Junietta Swenson was
recorded by Marilee Nelson in April 2013, about nine months
after Junietta Swenson executed the quit claim deed on July
5, 2012, and was introduced into evidence at trial. The
district court relied on the video in determining Junietta
Swenson was legally competent at the time of the deed and was
not suffering from a disability.
16] The Estate had the burden to prove that when Junietta
Swenson executed the July 5, 2012, quit claim deed, she was
so weak mentally as not to be able to comprehend and
understand the nature and effect of the transaction.
Estate of Wenzel-Mosset, ...