Preview:

IN THE COURT OF APPEALS OF IOWA No. 9-819 / 09-0596 Filed December 30, 2009

BRIAN D. MILLER, Executor of The Estate of Edward J. Humburg, Plaintiff-Appellant, vs. DUANE EISENTRAGER and SUSAN K. EISENTRAGER, Defendants-Appellees. ________________________________________________________________

Appeal from the Iowa District Court for Franklin County, Colleen D. Weiland, Judge.

Executor appeals the district court's dismissal of his petition alleging undue influence stemming from a confidential relationship, breach of fiduciary duty, and asserting a constructive trust. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

Joseph LaPointe, Mason City, for appellant. Dani Eisentrager, Eagle Grove, for appellees.

Heard by Vogel, P.J., and Doyle and Mansfield, JJ.

2 VOGEL, P.J. The executor of the Edward J. Humburg estate, Brian D. Miller, appeals the district court's dismissal of the petition alleging constructive fraud due to a confidential relationship, breach of fiduciary duty, and constructive trust. 1 The executor asserts the district court erred in (1) finding Susan Eisentrager sustained her burden of proof to rebut the presumption of undue influence; (2) failing to find Susan breached her fiduciary duty by abusing her authority as attorney-in-fact, and (3) failing to find a confidential relationship existed between Susan and Beulah Humburg, and between Susan's husband, Duane Eisentrager, and Edward Humburg. We agree with the district court a confidential relationship existed between Susan and Edward. However, we do not find substantial

evidence that Susan rebutted the presumption of undue influence. We also find she abused her authority as attorney-in-fact and remand with instructions. However, we do not find a confidential relationship existed between Susan and Beulah, or Duane and Edward, and affirm as to those issues. I. Background Facts and Proceedings Edward and Beulah Humburg had two children, Roger and Susan. Roger predeceased the couple, survived by his son, Anthony. During their marriage, both Edward and Beulah were involved in managing their finances, but Beulah handled most of the check-writing. As her parents got older, Susan increasingly helped them with errands, and began paying bills and writing checks for them in May 2001. In July 2001, Beulah transferred $40,000 to Susan and her husband,
1

We note noncompliance with the rules of appellate procedure, requiring the name of each witness whose testimony is included in the appendix to appear at the top of each page where the witness's testimony appears. See Iowa R. App. P. 6.905(7)(c).

3 Duane, for Susan to pay Edward and Beulah's expenses. Beulah passed away in September 2001. Following Beulah's death, Susan gave additional support to Edward by regularly bringing him to her house, often to spend the night, and providing for his day-to-day needs. She paid nearly every bill for Edward, writing checks on his checking accounts. On September 18, 2001, Edward executed a power of attorney, naming Susan as his attorney-in-fact. In January 2002, Edward moved in with the Eisentrager family. Edward utilized home health care services, but depended on Susan for his daily needs and transportation. During the summer of 2002, Edward deeded his homestead to Susan and Duane, retaining a life estate. physically, he remained mentally alert. Although Edward was failing

Edward passed away May 15, 2004.

Following his death, Susan and Duane sold Edward 's home for $59,010.73 and deposited the proceeds into their own account. On September 18, 2001, the same day he signed the power of attorney, Edward executed his last will. The will provided for an equal distribution between Susan and Anthony of Edward's residuary estate. Anthony had what the district court called a "pleasant relationship" with Edward, and visited Edward approximately once a month. Anthony, then age sixteen, received no notice

when Edward's estate was being administered by the original executor, Susan. Eventually Anthony's mother, Sara, inquired as to the status of the estate, and learned the estate had been fully administered and closed, but Anthony had

4 received nothing from the estate.2 A petition to reopen the estate was granted and the current litigation was brought by the newly appointed executor, Miller. After a trial, the district court dismissed the executor's petition. The executor appeals. II. Standard of Review Actions to set aside or contest wills are triable in probate as law actions. Iowa Code

Download BRIAN D. MILLER, Executor of The Estate of Edward J. Humburg, Plaintiff-Appellan

Iowa Law