This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-678

In Re: Estate of Malby Ward Blanchard, Decedent.

Filed October 22, 1996

Affirmed

Parker, Judge

Chisago County District Court

File No. P295459

Marshall H. Tanick, Sholly A. Blustin, Mansfield & Tanick, P.A., 1560 International Centre, 900 Second Avenue South, Minneapolis, MN 55402 (for appellants Renae Lefebvre and Laine Sangren)

Paul W. Chamberlain, Chamberlain, Neaton & Johnson, 445 Lake Street, Suite 303, Wayzata, MN 55391 (for respondent Kathryn Anderson)

Paul W. Oberg, 1000 Superior Boulevard, Suite 210, Wayzata, MN 55391 (for respondent Kathryn Anderson)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellants Renae Lefebvre and Laine Sangren (daughters) appeal the amended district court judgment ordering formal probate of Malby Blanchard's lost will. The court found that the terms of the lost will granted Blanchard's real and personal property at Rush Lake to Kathryn Anderson. The court also found that Blanchard did not revoke the will. On appeal, the daughters raise several arguments that they contend mandate reversal. We affirm.

FACTS

Blanchard and his wife, Shirley Blanchard, owned a home on Bass Lake where they lived with their two daughters. Blanchard became estranged from Shirley Blanchard. In 1964, Kathryn Anderson hired Blanchard to work for her company, Strite-Anderson. In 1965, Anderson and Blanchard commenced a romantic relationship. In 1969, Blanchard became a stockholder in Strite-Anderson, even though he had only $4,000 to invest. The balance of the purchase price for Blanchard's stock was paid by Anderson and by a loan from Strite-Anderson. When Strite-Anderson was ultimately sold in 1988, Blanchard received $1.7 million for his stock in the company.

In the mid-1970s, Anderson bought a lakeshore home on Rush Lake. In 1977, Blanchard purchased adjacent land with a cabin on it. Strite-Anderson gave Blanchard $75,000 to purchase the land in exchange for a bus that he owned. Anderson provided a great deal of money and effort to improve Blanchard's property. Strite-Anderson employees often worked on company time to further improve Blanchard's property. Ultimately, a single driveway, gate, sprinkler system, and phone system served the adjacent homes of Anderson and Blanchard. Further, a building containing garages and offices was constructed straddling the property lines. Blanchard kept his residence at Rush Lake secret from his daughters until 1989.

In 1979, Strite-Anderson's accountant and Blanchard's closest confidante, John Galvin, helped Blanchard draft and execute a will. The will granted the Bass Lake property to Shirley Blanchard and the Rush Lake property, both real and personal, to Kathryn Anderson. The will bequested $25,000 to each of Blanchard's daughters. The will made other bequests, including $3,000 to Galvin and $1 bequests to two of Blanchard's business enemies. The will named Shirley Blanchard the residual beneficiary.

Shirley Blanchard died in 1984, and the daughters became the residual beneficiaries. Malby Blanchard died in 1995, and the will was never found. The daughters applied for informal administration, claiming Blanchard died intestate. Anderson petitioned for probate of the lost will. The court held a bench trial regarding the lost will and the Rush Lake property.

At trial, Galvin presented uncontradicted testimony of the will's making, terms, and execution. Anderson testified regarding her close relationship with Blanchard; Blanchard showed her the will in 1980, and she testified to the same basic bequests that Galvin had related. Other witnesses testified to Blanchard's statements regarding the Rush Lake property and to the close relationship between Blanchard and Anderson.

The daughters' attorney revealed that the residue of the estate, which passes under the lost will to the daughters, amounts to about $650,000. The daughters, however, contend that the entire estate, including the Rush Lake property, should pass through intestacy. In attempting to prove revocation of the lost will, Malby Blanchard's daughters presented the testimony of several witnesses describing changed circumstances between the time of execution of his will and his death, including:

(1) the death of certain beneficiaries;

(2) Blanchard sold his Strite-Anderson stock;

(3) Blanchard grew closer to his daughters in his final years;

(4) Blanchard added both personal and real property to the Rush Lake property;

(5) Blanchard began a romantic relationship with another woman during the last year of his life; and

(6) Anderson's purported statement to Laine Sangren that she no longer felt like Blanchard's confidante.

The district court issued findings, conclusions, and an order for formal probate of the lost will. The court set forth the provisions of the lost will. The court later amended the judgment to add a provision for the payment of taxes, based on the testimony of Galvin. This appeal follows the entry of the amended judgment.

D E C I S I O N

The findings of a district court sitting without a jury will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. A finding is clearly erroneous if it is either without substantial evidentiary support or induced by an erroneous view of the law. Reserve Mining Co. v. State, 310 N.W.2d 487, 490 (Minn. 1981). On appeal, evidence must be viewed in a light most favorable to the district court's findings. Schmalz v. Maxwell, 354 N.W.2d 549, 552 (Minn. App. 1984). Due regard is given to the district court's opportunity to judge witness credibility. Minn. R. Civ. P. 52.01.

The daughters contend that their arguments involve not just fact issues but also legal issues subject to de novo review. The arguments articulated, however, are questions of fact and credibility. Applying de novo review to questions of fact is neither this court's function nor within its capability. As the supreme court has noted, "[w]ith a little ingenuity, most questions can be converted into so-called 'questions of law.'" Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 57 (Minn. 1993). Accordingly, the clearly erroneous standard of Rule 52.01 applies to the issues raised by the daughters. Further, the "facts" statement in the daughters's brief takes many liberties with the testimony and presents a rather biased view of the evidence. See Minn. R. Civ. App. P. 128.02 ("facts must be stated fairly, with complete candor"). Statements, as fact, of testimony by witnesses for the contestants of the will which are directly controverted by testimony on behalf of proponents do not meet this standard.

District court findings on a contested will must be sustained unless clearly erroneous. In re Estate of Langlie, 355 N.W.2d 732, 735 (Minn. App. 1984). A lost will that was last in the possession of a testator is rebuttably presumed revoked. Id. at 736. Thus, the proponent of a lost will has the initial burden of production to show that the will was not revoked. Id. at 735; see also Minn. R. Evid. 301 (a presumption imposes the burden of going forward with evidence). The ultimate burden of proof regarding a lost will is established by Minn. Stat. § 524.3-407 (1994). Langlie, 355 N.W.2d at 736. The statute provides that

in contested cases * * * [p]roponents of a will have the burden of establishing prima facie proof of due execution * * *. Contestants of a will have the burden of establishing * * * revocation.

Id. (quoting Minn. Stat. § 524.3-407). Revocation requires that the testator commit a revocatory act on the will (such as destruction) with the intent of revoking. Minn. Stat. § 524.2-507 (1994).

The daughters argue that the court clearly erred in finding that Anderson overcame the presumption of revocation of a lost will. We do not so view the evidence. Several witnesses testified to Blanchard's continuing intent to pass the Rush Lake property to Anderson, including:

(1) in 1991 or 1992, Blanchard reminded Galvin of the will and that the Rush Lake property was to pass to Anderson;

(2) in 1993, Blanchard indicated to his friend, Michael Bizal, that his money was available for his use, if he needed it, but in case of his death, his daughters would get the money and the rest "would be Kathy's";

(3) in 1988, Blanchard and his brother Lloyd heard a conversation regarding a case in which a woman received nothing upon the death of her long-term male companion; when Lloyd cautioned that a similar result could befall Anderson, Blanchard replied that he had "taken care of it" to avoid such a result;

(4) In 1993 or 1994, Blanchard indicated to Mattie Moses, a neighbor and friend, that Anderson could one day enjoy his "toys;" Blanchard later made other statements to Moses that Anderson would receive the Rush Lake property.

In addition, several witnesses testified that Blanchard and Anderson became closer in Blanchard's final years.

The daughters argue that the evidence presented by Anderson and Galvin is not credible because they are interested persons under the will. However, the court is not required to find testimony incredible simply because a witness is interested. Further, the amount Galvin would receive under the will, $3,000, pales in comparison to the $650,000 the daughters would receive under the will. Galvin, who is the CEO of a company in Georgia, testified that he was not interested in the $3,000 bequest, but only in carrying out the terms of Blanchard's will.

The daughters also argue that Blanchard's "extra-testamentary" statements should not be accorded much evidentiary weight. In Langlie, however, this court indicated that extra-testamentary declarations of a testator are "competent evidence of nonrevocation." 355 N.W.2d at 736. Further, the Greenberg case does not hold, as the daughters seem to indicate, that extra-testamentary declarations are insufficient to show nonrevocation. See In re Estate of Greenberg, 249 Minn. 254, 261, 82 N.W.2d 239, 244 (1957).

The daughters argue that Anderson did not demonstrate the reasonableness of the lost will's terms. See In re Estate of Carlson, 384 N.W.2d 239, 241 (Minn. App. 1986) (the reasonableness of a lost will's terms provides significant circumstantial evidence of nonrevocation). This argument ignores the evidence:

(1) the daughters played limited roles in Blanchard's life and did not even know his place of residence or phone number until 1989;

(2) Anderson maintained a long-term business and personal relationship with Blanchard;

(3) Anderson spent a great deal of money and effort to improve Blanchard's Rush Lake property; and

(4) Blanchard and Anderson basically shared their respective properties on Rush Lake and used the properties as one.

Thus, the grant of the Rush Lake property to Anderson is reasonable, and the daughters' characterization of themselves as "natural bounty" of the decedent's generosity and of Anderson as a mere unrelated person does not comport with the evidence.

The daughters argue that the district court clearly erred in finding that they did not sustain their burden of proving revocation of the lost will. The daughters claim they presented "voluminous" evidence of revocation and that their evidence should have preponderated over Anderson's. Most of their cited evidence of revocation focuses on changed circumstances occurring in the period between execution of the will and Blanchard's death. The most significant of these purported changes was Blanchard's improved relationship with his daughters (which occurred due to the prompting of Anderson) and Blanchard's romantic relationship with another woman. Under Minnesota law, however, changed circumstances do not generally revoke a will. Minn. Stat. § 524.2-508 (1994). While an inference might be drawn from such changes in Blanchard's circumstances, they do not render the court's findings clearly erroneous.

The daughters also argue that revocation is proved by the fact that the will was never found. See In re Estate of Botko, 541 N.W.2d 616, 619 (Minn. App. 1996), review denied (Minn. Feb. 27, 1996) (law permits inference of revocability when an original will that was in the decedent's possession is not produced). While this constitutes evidence of revocation, it is not conclusive. Indeed, several witnesses testified to Blanchard's continuing testamentary intent to give Anderson the Rush Lake property. The daughters stress that in most lost-will cases, the proponent has at least produced a copy of the will. As the daughters concede, however, nothing in the case law requires that a proponent produce a copy. In this case, Galvin's testimony definitively established the terms of the will.

Ultimately, we cannot characterize the court's finding of nonrevocation as clearly erroneous. The court considered the evidence submitted by Anderson to be credible and probative of the execution, terms, and nonrevocation of the lost will. See Roy Matson Truck Lines, Inc. v. Michelin Tire Corp., 277 N.W.2d 361, 362 (Minn. 1979) (the district court, when sitting without a jury, is the sole judge of witness credibility). Indeed, we note that the court bolsters the findings and credibility determinations with a thoughtful and detailed memorandum. We conclude that the record supports the court's finding that the will granted all Rush Lake property, both real and personal, to Anderson. The record also supports the finding that the daughters did not sustain their burden of proving revocation.

The daughters raise an additional issue as to the district court's finding regarding Alain Lefebvre (the husband of one of the daughters). Following Blanchard's death, Alain Lefebvre spent the weekend searching through Blanchard's papers. He told Anderson that Blanchard died intestate and that Anderson should move her belongings out of Blanchard's home immediately. He offered that if she did not remove her belongings, then he would remove them for her. The court found that Anderson did not prove Alain Lefebvre destroyed the will during his search. The court went on to find, however, that given Alain Lefebvre's "poor credibility" at trial and his conduct in demanding (on the day after Blanchard's death) that Anderson remove her property from Blanchard's house, it was "more likely" that Alain Lefebvre destroyed the will than that Blanchard did so.

The daughters contend this finding constitutes reversible error because it is "hopelessly inconsistent." We disagree. A careful reading of the court's finding indicates no inconsistency or confusion. The finding is a comparative evaluation of the weight of evidence and simply points to the virtual lack of evidence that Blanchard revoked the will or otherwise changed his testamentary intent. Further, the daughters neglect to note that Anderson did not have a burden of proving that Alain Lefebvre destroyed the will. Indeed, the court did not rely on the finding at issue in making the determination that the will was not revoked; rather, the court relied on the fact that the daughters presented no real evidence to indicate revocation other than the fact that the will was never found.

The only issue remaining is the payment of taxes. The district court determined that the preamble of the will directs Galvin, as the personal representative, to "pay the last bills and taxes" from the estate. This finding has record support based on Galvin's testimony, and thus the daughters' argument seeking rescission of the tax provision is contrary to the evidence.

The daughters also argue for the first time on appeal that the tax provision is unclear as to whether taxes should be paid before the bequests, especially in light of Minn. Stat. § 524.3-916 (unless the will provides otherwise, taxes shall be apportioned among all persons interested in the estate). Because the daughters did not present this argument to the district court, we do not consider it upon appellate review. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court considers only those matters presented to and considered by the district court). The administration of the estate is still subject to the district court's review, and therefore the daughters can seek judicial interpretation of the tax provision by objecting to a final accounting.

Affirmed.