This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-590

In Re: The Estate of Thomas J. Van Den Boom, Deceased.

Filed August 26, 1997

Affirmed in part and reversed in part

Short, Judge

Aitkin County District Court

File No. P593160

Richard A. Ohlsen, Richard A. Ohlsen, Ltd., 2011 South Sixth Street, P.O. Box 366, Brainerd, MN 56401-0366 (for appellant Gary Van Den Boom)

Ryan E. Langsev, Bale Anderson Polstein Pearson & Hill, Ltd., 607 Marquette Avenue, Suite 400, Minneapolis, MN 55402 (for respondent Arlene M. Van Den Boom)

Charles P. Steinbauer, Borden, Steinbauer & Krueger, P.A., 302 South Sixth Street, P.O. Box 411, Brainerd, MN 56401 (for respondent Robert Janzen)

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

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

SHORT, Judge

After Thomas J. Van Den Boom's (decedent's) death, his four adult children and his wife, Arlene M. Van Den Boom (widow), petitioned for formal probate of his will. On appeal from a denial of his motions for various forms of relief, the decedent's eldest son, Gary Van Den Boom (Van Den Boom), argues the trial court committed errors of fact and law. We affirm in part and reverse in part.

D E C I S I O N

This court will not set aside a trial court's findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01; Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). However, we do not defer to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I.

Van Den Boom argues the trial court erred in refusing to remove the personal representative from his position and in awarding him reasonable compensation and attorney fees. We disagree. The decision whether to remove a personal representative rests within a trial court's discretion. In re Estate of Michaelson, 383 N.W.2d 353, 355-56 (Minn. App. 1986) (quoting Larson v. Red River Valley Conference of the Evangelical Lutheran Augustana Synod (In re Estate of Munson), 238 Minn. 366, 370, 57 N.W.2d 26, 29 (1953)); see Minn. Stat. § 524.3-611(b) (1996) (providing cause for removal exists when personal representative has mismanaged estate or removal is otherwise in estate's best interests). By statute, a personal representative is presumptively entitled to reasonable compensation and attorney fees. Minn. Stat. §§ 524.2-719(a) (1996) (compensation), 524.3-720 (1996) (attorney fees).

While Van Den Boom argues the personal representative generally mismanaged and failed to preserve the estate, the trial court found the personal representative: (1) was a licensed auctioneer who regularly took inventories of clients' tools, antiques, machinery, and equipment as part of his profession; (2) had served as a court-appointed estate administrator for 15 years; (3) twice inventoried the decedent's homestead, garage, shop, and shed; (4) inventoried 197 separate items of personal property; (5) submitted an official inventory far more detailed than that typically prepared for an estate of this size; (6) obtained legal representation at the trial court's "strong encouragement"; (7) conferred with Van Den Boom, the widow, and their respective counsel on numerous occasions; (8) filed with the court a detailed invoice for his services, showing he had spent significant time administering the decedent's estate; (9) committed no wrongdoing with respect to the estate administration; and (10) had commendably "h[eld] up under the pressure of administering this estate." The trial court's findings of fact are amply supported by the record. Under these circumstances, the trial court did not abuse its discretion in refusing to remove the personal representative from his position or in awarding the personal representative reasonable compensation and attorney fees.

II.

Van Den Boom also argues the trial court erred in permitting the estate to pay a statutory allowance to the widow for the initial 12 months of the estate's pendency. Minn. Stat. § 524.2-404(a) (1996) provides a surviving spouse reasonable maintenance from a decedent's estate. In determining reasonable maintenance, courts consider the value of the estate, the couple's previous standard of living, and other resources available to the spouse to meet current living expenses. In re Estate of Cassius, 392 N.W.2d 327, 329 (Minn. App. 1986). The trial court awarded the widow statutory allowance after hearing her testimony that: (1) the interest from her nonprobate assets and social security benefits barely covered her monthly living expenses; (2) she had sizable medical bills to pay for her own cancer treatment; (3) she had been forced to work part-time minimum wage manual labor jobs prior to receiving social security benefits; and (4) her children had provided her with food during this time. Given this record, the trial court's maintenance award does not constitute an abuse of discretion.

Van Den Boom also argues the trial court erred in allowing reimbursement of the widow's total claimed funeral expenses. However, reasonable funeral expenses may be paid from a deceased's estate. Minn. Stat. § 524.3-715(18) (1996). The record shows the widow submitted a written statement from the funeral home and gave oral testimony alleging she had paid a funeral bill in the amount of $2,622. While Van Den Boom asserts the funeral bill was partially defrayed by a Social Security payment, the trial court excluded his supporting documents on a foundation objection, and Van Den Boom did not appeal that exclusion. Under these circumstances, the trial court did not clearly err in finding the widow had personally paid the entire amount of the claimed funeral expenses.

Van Den Boom further argues the trial court erred in ordering payment of the decedent's and the widow's 1992 joint federal and state income taxes out of estate funds. However, a surviving spouse may file an income tax return jointly with his or her deceased spouse. 1 Robert A. Stein, Stein on Probate § 11.02(c) (3d ed. 1995) (citing 26 U.S.C. § 6013(a)(2) (1994)). If a joint return is made, the tax liability is joint and several between the two spouses. Id. § 6013(d)(3) (1994). On the basis of the couple's 1992 tax returns, the trial court concluded all the couple's income taxes were attributable to the decedent's distributed IRA income, and the widow had no income of her own. We conclude the trial court did not clearly err in charging the estate for the couple's joint income tax liability.

Van Den Boom also argues the trial court improperly ordered the estate to reimburse the widow for the property taxes and insurance premiums she paid on the homestead during the period between her husband's death and the conclusion of probate proceedings. We agree. Generally, a personal representative must take control of a deceased's real property, and is required to pay taxes on it and take any other steps necessary to manage, protect and preserve the property. Minn. Stat. § 524.3-709 (1996). However, when a surviving spouse maintains a homestead right in the premises and enjoys the use and occupation of the residence, the duty to pay property taxes falls upon the surviving spouse, and not upon the estate. 2 Minnesota Probate Law Digest § 23.38.F (James W. Forbess ed., 2d ed. 1993); see Nordlund v. Dahlgren (In re Estate of Walberg), 130 Minn. 462, 467, 153 N.W. 876, 878 (1915) (forbidding surviving spouse from charging homestead taxes and betterments to estate). This rule holds true even when the surviving spouse has yet to make a formal selection of the homestead or to be awarded the property by decree. See Wilson v. Proctor, 28 Minn. 13, 17, 8 N.W. 830, 832 (1881) (requiring widow to pay taxes on home not yet assigned to her by probate court); cf. In re Estate of Peterson, 365 N.W.2d 300, 302-03 (Minn. App. 1985) (concluding estate bore responsibility for paying taxes and insurance on homestead between decedent's death and conveyance of property to daughter, where daughter did not take possession until formal conveyance). Although the widow has not yet been formally awarded the homestead, she has enjoyed the possession and use of the residence since the decedent's death. Therefore, we conclude the trial court erred in reimbursing the widow's real estate taxes and property insurance premiums.

Van Den Boom next argues that, although the language of the decedent's will explicitly grants the widow a life estate in the homestead with a remainder interest in the four children, the trial court erred by refusing to grant the decedent's children fee simple in the homestead, subject to a life estate for the widow. See In re Estate of Murphy, 146 Minn. 418, 420-21, 179 N.W. 728, 729 (1920) (providing that, on death of intestate, title to homestead vests immediately in children, subject only to life estate in surviving spouse). However, we cannot say the trial court erred when its disposition of the property conformed precisely with the decedent's expressed intent. See First Nat'l Bank v. Kirschmann (In re Will of Schmidt), 256 Minn. 64, 89, 97 N.W.2d 441, 458 (1959) (stating court's primary duty in construing will is to ascertain and effectuate intention of testator). Furthermore, while Van Den Boom complains the personal representative may subject the homestead to sale, the trial court made no related findings or conclusions reviewable by this court. See State Fund Mut. Ins. Co. v. Enebo, 458 N.W.2d 161, 163 (Minn. App. 1990) (citing Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), and limiting this court's review to issues considered and decided by trial court), review denied (Minn. Sept. 20, 1990).

III.

Van Den Boom also argues the trial court erred in denying reimbursement of his claimed funeral and estate administration expenses. See Minn. Stat. § 524.3-715(18) (permitting personal representative to pay funeral expenses and all costs and expenses of administration); see also Kelly v. Snow, 168 Minn. 298, 299, 210 N.W. 105, 105 (1926) (recognizing relatives other than deceased's spouse had claim for reimbursement of funeral costs against estate). However, with the exception of an unauthenticated document attached to his final letter argument and his hand-written statements and oral testimony regarding the same, Van Den Boom presented no evidence supporting his claims. See State by Lord v. Casey, 263 Minn. 47, 55, 115 N.W.2d 749, 755 (1962) (permitting trial court discretion in deciding whether to consider evidence submitted by party after resting case). Under these circumstances, the trial court did not err in concluding Van Den Boom was not entitled to reimbursement from the estate.

Van Den Boom further argues the trial court abused its discretion in disallowing his attorney fees and costs. When the services of an attorney contribute to the benefit of an estate, as distinguished from the personal benefit of the individual retaining the attorney, the attorney is entitled to payment from the estate assets as the court deems reasonable and commensurate with the benefit to the estate. Minn. Stat. § 524.3-720. However, where legal services performed on behalf of an interested person do not inure to the benefit of the estate, no compensation is allowed. In re Estate of Baumgartner, 274 Minn. 337, 346, 144 N.W.2d 574, 579 (1966); see In re Estate of LeBrun, 458 N.W.2d 139, 145 (Minn. App. 1990) (denying beneficiary's request for attorney fees where beneficiary did not prevail on issues of value which would benefit estate). The trial court denied Van Den Boom's attorney fees, finding: (1) while Van Den Boom was acting pro se, he filed a motion setting forth 22 requests, most of which, if granted, would have "delay[ed] the closing of the estate indefinitely"; and (2) many of the factors that resulted in prolonging the administration of the estate were attributable to Van Den Boom. Furthermore, Van Den Boom's efforts on behalf of the estate recovered only $789.15 in disallowed medical bill reimbursements, $3,500 in disallowed real estate taxes and insurance premiums, and a two-wheeled trailer. In light of the expense Van Den Boom added to the estate's administration and the relatively insignificant benefit he contributed to the estate, the trial court's denial of his claim for $14,000 in attorney fees does not constitute an abuse of discretion.

IV.

Van Den Boom also argues the trial court clearly erred in finding the widow did not purposely convert assets of the estate to her own use. The conversion of estate assets before the appointment of a personal representative subjects the wrongdoer to liability for double the value of the property converted. Minn. Stat. § 525.392 (1996). However, good faith is a defense to the imposition of double liability. Chard v. Darlington, 243 Minn. 489, 495-96, 68 N.W.2d 405, 409 (1955). Van Den Boom asserts the widow fraudulently converted an electric company stock certificate, a trailer, some steel and lumber, and reimbursement checks from health insurers. However, after hearing the parties' testimony, the trial court concluded the widow "was simply doing things normally done by a surviving spouse and unfortunately for her, there were enough bad feelings between her and her spouse's children for her every action to be questioned." Given the testimony, the court's finding that "every action Arlene took was done in good faith and without intent to defraud the estate" is not clearly erroneous.

V.

As holder of a remainder interest in the homestead, Van Den Boom finally argues the trial court abused its discretion in refusing to order the widow to allow him to inspect the homestead. We disagree. A remainder in fee, subject to a life estate, does not entitle the remainderman to possess or occupy the premises while the life tenant is alive. In re Estate of Rising, 186 Minn. 56, 65-66, 242 N.W. 459, 463 (1932); 1 James D. Olson, Minnesota Residential Real Estate § 2.04 (1997). While a life tenant must make necessary and reasonable repairs to a property, the holder of a remainder interest does not have the right to object to or interfere with the life tenant's improvements. Day v. Day, 180 Minn. 151, 154-55, 230 N.W. 634, 636 (1930) (recognizing life tenant had exclusive possession of property, with which future interest holders could not interfere); see Beliveau v. Beliveau, 217 Minn. 235, 242, 14 N.W.2d 360, 364 (1944) (requiring life tenant to make necessary repairs). Under these circumstances, the trial court did not abuse its discretion in refusing to allow Van Den Boom to interfere with the widow's present right to possession of the homestead.

Affirmed in part and reversed in part.