This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re: The Estate of Herman

Gentz, Deceased.

Filed September 9, 1997

Reversed and remanded

Willis, Judge

Cottonwood County District Court

File No. P095186

Daniel A. Birkholz, 101 South Seventh Street, P.O. Box 461, Saint James, MN 56081 and James H. Manahan, Manahan & Bluth Law Office, 416 South Front Street, P.O. Box 287, Mankato, MN 56002 (for Appellant Lyle Krueger)

Daniel M. McDonald, McDonald and Gudmestad, 906 Fourth Avenue, P.O. Box 505, Windom, MN 56101 (for Respondent Linda Miller)

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.[*]



Appellant Lyle Krueger challenges the district court's grant of summary judgment to respondent, arguing there are genuine issues of material fact regarding the removal of respondent Linda Miller as personal representative of Herman Gentz's estate. We reverse and remand.


Molly and Herman Gentz, who was Linda Miller's uncle, were childless. Miller spent most of her childhood living with the Gentzes. When Molly became ill in 1980, Miller helped with household duties and with Molly's care. Molly died in 1983. In 1984, when he was 86 years old, Gentz moved into a nursing home. In 1985, Miller began assisting Gentz with his financial affairs, and in 1994, he gave Miller power of attorney. Gentz died in 1995, and Miller was appointed personal representative of his estate pursuant to his will.

In 1996, Lyle Krueger, one of Gentz's nephews, filed a petition to remove Miller for cause as personal representative of the estate, arguing that during Gentz's lifetime, Miller had improperly diverted Gentz's assets into joint tenancies involving Gentz, Miller, and Miller's children. The district court granted Miller's motion for summary judgment, concluding that Krueger had failed to state a claim on which relief could be granted and had failed to establish any breach of duty by Miller that would require her removal as personal representative.


On appeal from summary judgment, this court determines whether there are any genuine issues of material fact in dispute and whether the district court correctly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

Krueger argues that certain joint bank accounts and joint certificates of deposit were improperly established because (1) they were not legally effective gifts in the absence of proof of intent, (2) Gentz was incompetent when the accounts and certificates of deposit were created, (3) Miller exercised undue influence over Gentz, (4) Gentz was incompetent to grant the power of attorney to Miller, (4) Miller misled Gentz regarding his finances, and (5) Miller illegally converted funds. Krueger alleges that Miller breached her duty as personal representative to gather the assets of the estate by not recovering the joint bank accounts and certificates of deposit for the estate. See In re Estate of Healy, 247 Minn. 205, 209, 76 N.W.2d 677, 680 (1956) (concluding that executor is under duty to see that assets are not diverted from estate). Miller denies Krueger's allegations and contends that the transfers he questions were legally effective gifts that she has no obligation to recover for the estate.

Cause for removal of a personal representative exists when

removal is in the best interests of the estate, or if it is shown that a personal representative or the person seeking the personal representative's appointment intentionally misrepresented material facts in the proceedings leading to the appointment, or that the personal representative has disregarded an order of the court, has become incapable of discharging the duties of office, or has mismanaged the estate or failed to perform any duty pertaining to the office. In determining the best interests of the estate, the personal representative's compensation and fees, and administrative expenses, shall also be considered.

Minn. Stat. § 524.3-611(b) (1996).

The district court found that Krueger failed to state a claim for Miller's removal because his allegations have to do with her actions before her appointment and, therefore, have no bearing on her performance as personal representative. We disagree. If Krueger's allegations are true, Miller's interests are in conflict with those of the estate, making her removal in the "best interests of the estate." See In re Estate of Munson, 238 Minn. 366, 370, 57 N.W.2d 26, 29 (1953) (concluding that representative of estate may be removed where representative was personally interested as heir in administration of estate and was antagonistic to administration of will); In re Estate of Michaelson, 383 N.W.2d 353, 356 (Minn. App. 1986) (affirming removal of representative where representative's interests were in conflict with estate's and representative had become "unsuitable" to administer will).

After finding that Krueger's petition for removal failed to state a claim, the district court (1) analyzed the evidence with regard to Krueger's allegations, (2) found that the evidence was not sufficient to show that Miller acted inappropriately before or after Gentz's death or that Gentz was incompetent, (3) determined that Miller "fulfilled her duties as Personal Representative appropriately[,]" and (4) entered summary judgment in favor of Miller. We conclude that the district court erred in making fact determinations on summary judgment. Krueger put genuine issues of material fact in dispute with regard to whether Miller's service as personal representative is in the best interests of the estate. See Healy, 247 Minn. at 209-10, 76 N.W.2d at 680 (concluding that question of whether executor acted in good faith in efforts to sustain will could not be determined on summary judgment).

Because we conclude that summary judgment was inappropriate, we remand to the district court for further proceedings. We are aware from remarks during oral argument that Krueger has commenced another action in district court based on the same alleged conduct by Miller. The district court has the authority on remand to consolidate these cases or take whatever other action it believes appropriate in the interest of judicial economy.

Reversed and remanded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.