                Filed 7/18/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 196


In the Matter of the Estate of Kandi Ann Hall, Deceased

Tyson Hall, Personal Representative of
the Estate of Kandi Ann Hall,                               Petitioner and Appellee

      v.

Brianna McLaen,                                           Respondent and Appellant

      and

Brittany Fiala, Shayla Fiala, and W.H.,                                Respondents


                                  No. 20190009


      Appeal from the District Court of Sargent County, Southeast Judicial District,
the Honorable Mark T. Blumer, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by Tufte, Justice.

       John D. Bullis (argued) and Brittany L. Hatting (on brief), Wahpeton, N.D.,
for petitioner and appellee.

      Ronald H. McLean (argued) and Ian McLean (on brief), Fargo, N.D., for
respondent and appellant.
                                    Estate of Hall
                                    No. 20190009


       Tufte, Justice.
[¶1]   Brianna McLaen appeals from an order granting Tyson Hall’s petition for an
elective share of the Estate of Kandi Ann Hall. McLaen argues the district court erred
by determining Tyson Hall could claim an elective share of Kandi Hall’s intestate
estate and by deciding a warranty deed for certain real property was void. We
conclude a surviving spouse may claim an elective share of an intestate estate under
N.D.C.C. § 30.1-05-01, but the court erred in determining ownership of the real
property. We reverse and remand.


                                           I
[¶2]   Kandi and Tyson Hall were married on May 23, 2013. They have one minor
child together. Kandi Hall also has three adult children unrelated to Tyson Hall,
including McLaen. Kandi Hall died intestate on February 10, 2018.
[¶3]   At the time of Kandi Hall’s death, she owned real property described as “Lots
12 and 13 and the South 10 feet of Lot 14, all in Block 34, First Addition to the City
of Forman, Sargent County, North Dakota.” She initially acquired an undivided one-
fourth interest in the property by a July 18, 2012, Personal Representative’s Deed of
Distribution. Kandi Hall’s three sisters held the remaining three-fourths interest. She
later purchased her sisters’ interests in the property. Kandi Hall and her three sisters
executed a warranty deed transferring their interests in the property to Kandi Hall and
McLaen “as joint tenants and not as tenants in common.” The deed was executed by
Kandi as “a single woman.” Each of Kandi’s sisters was joined in executing the deed
by her husband. Kandi and Tyson Hall were residing in a house on the property at the
time of her death in February 2018.
[¶4]   In April 2018, Tyson Hall was appointed personal representative of Kandi
Hall’s intestate estate. In June 2018, Tyson Hall petitioned for an elective share of

                                           1
the augmented estate under N.D.C.C. ch. 30.1-05. Tyson Hall argued Kandi Hall
owned property worth $62,468.10 at the time of her death, including the real property.
He also argued the 2013 warranty deed transferring the real property to Kandi Hall
and McLaen as joint tenants was void because he was married to Kandi Hall at the
time the deed was executed, he did not join in the deed or consent to the conveyance,
and a homestead in North Dakota cannot be transferred without the signatures of both
the husband and wife under N.D.C.C. § 47-18-05. He claimed he is entitled to an
elective share of the augmented estate as a surviving spouse under N.D.C.C. ch. 30.1-
05, the entire value of the real property must be included in the augmented estate
because the deed is void, and he should be awarded all of the estate’s assets because
they are worth less than the amount of the elective share.
[¶5]   McLaen opposed the petition. McLaen argued Tyson Hall’s inventory of the
estate’s assets failed to account for various assets, the deed transferring the property
to Kandi Hall and McLaen was not void, and Tyson Hall already received more than
his elective share of the estate. She requested the court recognize her as the rightful
owner of the real property pursuant to the recorded deed and award her the costs she
incurred to preserve the property from tax foreclosure.
[¶6]   After a hearing, the district court granted Tyson Hall’s petition for an elective
share of Kandi Hall’s augmented estate. The court found Tyson Hall, as surviving
spouse, had a right of election to take an elective share amount of the augmented
estate, any attempt to transfer the real property into joint tenancy with McLaen was
void because Tyson Hall did not join in the conveyance, the entire value of the real
property must be included in the augmented estate, and Tyson Hall was entitled to
distribution of all of the identified assets to satisfy the elective share. The court
ordered McLaen divested of her interest as a joint tenant in the real property and be
required to issue a quit claim deed transferring the property to the estate’s personal
representative.


                                           II

                                           2
[¶7]   McLaen argues the district court erred by determining Tyson Hall could claim
an elective share of Kandi Hall’s intestate estate under N.D.C.C. ch. 30.1-05 because
an elective share may be taken by a surviving spouse only if there is a will. She
contends the purpose of an elective share is not served by applying it in an intestate
proceeding because the elective share is to protect a spouse from being disinherited
under a will.
[¶8]   The interpretation of a statute is a question of law, which is fully reviewable
on appeal. In re Estate of Johnson, 2015 ND 110, ¶ 12, 863 N.W.2d 215. Our
primary objective in interpreting a statute is to determine the intent of the legislation,
as expressed in its statutory language. In re Estate of Brandt, 2019 ND 87, ¶ 13, 924
N.W.2d 762. Words are given their plain, ordinary, and commonly understood
meaning, unless they are specifically defined or contrary intention plainly appears.
N.D.C.C. § 1-02-02. Statutes are construed as a whole and harmonized to give
meaning to related provisions. N.D.C.C. § 1-02-07; Brandt, at ¶ 13. We interpret
statutes to give effect to all of their provisions. N.D.C.C. § 1-02-38(2). When a
uniform statute is interpreted it must be construed to effectuate its general purpose to
make the law uniform in the states which enacted it. N.D.C.C. § 1-02-13.
[¶9]   Section 30.1-05-01, N.D.C.C., governs the elective share for a surviving
spouse, and states:
       1. The surviving spouse of a decedent who dies domiciled in this state
          has a right of election, under the limitations and conditions stated in
          this chapter, to take an elective share amount equal to fifty percent
          of the augmented estate.
       2. If the sum of the amounts described in [N.D.C.C. § 30.1-05-
          02(2)(d)], [N.D.C.C. § 30.1-05-03(1)(a)], and that part of the
          elective-share amount payable from the decedent’s probate estate
          and nonprobate transfers to others under [N.D.C.C. § 30.1-05-03(2)
          and (3)] is less than seventy-five thousand dollars, the surviving
          spouse is entitled to a supplemental elective-share amount equal to
          seventy-five thousand dollars minus the sum of the amounts
          described in those sections. The supplemental elective-share
          amount is payable from the decedent’s probate estate and from
          recipients of the decedent’s nonprobate transfers to others in the
          order of priority set forth in [N.D.C.C. § 30.1-05-03(2) and (3)].

                                            3
         3. If the right of election is exercised by or on behalf of the surviving
            spouse, the surviving spouse’s homestead allowance, exempt
            property, and family allowance, if any, are not charged against, but
            are in addition to, the elective-share and supplemental elective-share
            amounts.
[¶10] Nothing in the plain language of the statute limits the right of election to testate
cases where there is a will. Section 30.1-05-01, N.D.C.C., is based on Uniform
Probate Code § 2-202. The official comment to the uniform provision does not
specifically address whether the right to an elective share is limited to testate estates,
but simply states, “To have the right to an elective share under subsection (a), the
decedent’s spouse must survive the decedent.”
[¶11] Section 30.1-05-03(1), N.D.C.C., which governs the sources from which an
elective share may be satisfied, states the “[a]mounts included in the augmented estate
under [N.D.C.C. § 30.1-05-02(2)(a)] which pass or have passed to the surviving
spouse by testate or intestate succession” are to be applied first to satisfy the elective
share. This statute expressly states the elective share may be satisfied by property that
passes to the surviving spouse by intestate succession. The statute anticipates the
elective share may be applied to both testate and intestate estates. When the statutes
are read together and harmonized, they support interpreting N.D.C.C. § 30.1-05-01
to allow a surviving spouse to claim an elective share in both testate and intestate
cases.
[¶12] In Jones v. Jones, 310 N.W.2d 753, 757 (N.D. 1981), while discussing
ownership of partnership property, this Court said in dicta that a prior version of
N.D.C.C. § 30.1-05-01 “gives the surviving spouse the right of election to take one-
third of the estate under certain limitations and conditions if the other spouse dies
intestate.” The prior version of N.D.C.C. § 30.1-05-01 contained language similar to
the current version. See N.D.C.C. § 30.1-05-01 (1976) (stating “[i]f a married person
domiciled in this state dies, the surviving spouse has a right of election to take an
elective share of one-third of the augmented estate under the limitations and
conditions hereinafter stated”). Although this Court’s statement in Jones is dicta, it


                                            4
is consistent with the plain language of N.D.C.C. § 30.1-05-01. We conclude the
surviving spouse of a decedent may claim an elective share of either a testate or
intestate estate under N.D.C.C. § 30.1-05-01.
[¶13] Our interpretation of N.D.C.C. § 30.1-05-01 is consistent with the
interpretation of similar statutes in other states.       See, e.g., In re Estate of
Antonopoulos, 993 P.2d 637, 641-43 (Kan. 1999) (holding the surviving spouse of an
intestate decedent is not precluded from exercising elective-share rights under Kan.
Stat. Ann. § 59-6a201 et seq.); In re Will of Shepherd, 761 S.E.2d 221, 225-26 (N.C.
Ct. App. 2014) (stating it is clear from the plain language of the statute that an
elective share may be claimed by a surviving spouse if the decedent dies intestate
because the statute requires property passing by intestate succession to be included
in calculating the elective share); In re Estate of Smith, 401 N.W.2d 736, 738, 740
(S.D. 1987) (stating the surviving spouse may opt to take an elective share of the
augmented estate when the decedent died intestate and the intestate succession statute
does not conflict with the elective share statute). See also Lawrence H. Averill, Jr.,
Uniform Probate Code in a Nutshell, 79 (3d ed. 1993) (stating the opportunity to take
an elective share “exists whether the decedent died intestate, testate with a will which
disinherits the surviving spouse, or testate with a will which gives all or part of the
estate to the surviving spouse”).
[¶14] McLaen contends the purpose of the elective share statutes is to protect a
surviving spouse from being disinherited under a will and therefore an elective share
is unnecessary when there is an intestate estate because the surviving spouse is
already entitled to a portion of the intestate estate. Although a surviving spouse may
be disinherited under a will, testate and intestate decedents may also disinherit
a surviving spouse through nonprobate transactions. Therefore, our interpretation
of N.D.C.C. § 30.1-05-01 is consistent with the purpose of the statute. See
Antonopoulos, 993 P.2d at 642 (discussing the underlying public policy of elective
share statutes).



                                           5
[¶15] From the language used in N.D.C.C. ch. 30.1-05, we conclude a surviving
spouse may exercise the right to an elective share of a testate or intestate estate. The
district court did not err by deciding Tyson Hall could claim an elective share.


                                           III
[¶16] McLaen argues the district court erred by deciding that the 2013 warranty deed
conveying the real property to Kandi Hall and McLaen as joint tenants is void and by
ordering that the effect of the voided deed was for Tyson Hall to obtain a full interest
in the property. She contends Tyson Hall did not have an interest in Kandi Hall’s
property and he did not need to sign the warranty deed in order for it to be valid.
McLaen contends that even if the warranty deed is void, Tyson Hall would not be
entitled to a full interest in the property because Kandi Hall and her sisters each would
continue to have a one-fourth interest in the property.
[¶17] A legal conclusion of whether a deed is void or voidable is a question of law.
Gannaway v. Torres, 2017 ND 287, ¶ 12, 904 N.W.2d 317. Factual findings in a
probate proceeding are reviewed under the clearly erroneous standard. In re Estate
of Eagon, 2017 ND 243, ¶ 11, 902 N.W.2d 751.
[¶18] The district court found the conveyance of the real property to McLaen as a
joint tenant was void and ordered McLaen to issue a quit claim deed transferring her
interest in the property to Tyson Hall. The court found the entire value of the house
should be included in the augmented estate because Kandi Hall contributed all monies
to the purchase of the property and McLaen did not contribute any funds. The court
also found the property “was the homestead of the parties from May 23, 2013 and
continuing through the present, any attempted transfer of the homestead into joint
tenancy, with Brianna McLaen, was void in that the decedent’s spouse . . . did not join
in the conveyance.” The court further concluded, “[Tyson Hall’s elective] share
cannot be satisfied without including the value of the decedent’s non-probate transfers
to others pursuant to N.D.C.C. § 35.1-05-02. As a result, [Tyson Hall] is entitled to



                                           6
the homestead in its entirety including any share of the joint tenant, Brianna
McLaen . . . .”
[¶19] Tyson Hall contends the warranty deed is void under N.D.C.C. § 47-18-05.
Section 47-18-05, N.D.C.C., states, “The homestead of a married person, without
regard to the value thereof, cannot be conveyed or encumbered unless the instrument
by which it is conveyed or encumbered is executed and acknowledged by both the
husband and wife.” The conveyance of a homestead or any portion thereof must be
executed and acknowledged by both husband and wife, or it is void and ineffective.
See Nichols v. Schutte, 26 N.W.2d 515, 521 (N.D. 1947).
[¶20] The district court found the property was Tyson and Kandi Hall’s homestead,
and McLaen does not argue the court’s finding is clearly erroneous. In July 2012,
Kandi Hall and her three sisters each received an undivided one-fourth interest in the
property through a Personal Representative’s Deed of Distribution. Kandi Hall
married Tyson Hall in May 2013. After the marriage, Kandi Hall and her sisters
executed a warranty deed intended to convey the property to Kandi Hall and McLaen
as joint tenants. Kandi Hall’s three sisters and their spouses all signed the warranty
deed as grantors. Tyson Hall did not sign the warranty deed. Because Tyson Hall
was married to Kandi Hall when the warranty deed was executed and he did not sign
the deed, the deed is ineffective to convey any interest Kandi Hall held in the property
to McLaen. See Anderson v. Blixt, 72 N.W.2d 799, 803 (N.D. 1955). Any homestead
interest of Tyson Hall’s did not invalidate the deed to the extent it conveyed an
interest from one of Kandi Hall’s sisters to Kandi Hall and McLaen.
[¶21] Before the deed, Kandi Hall owned a one-fourth interest subject to her husband
Tyson Hall’s homestead interest. This one-fourth interest was held as a tenant in
common with Kandi Hall’s three sisters. The deed did not affect this interest.
Because the sisters’ conveyances are not void, the deed did convey their three-fourths
interest to Kandi Hall and McLaen as joint tenants. See Jackson v. O’Connell, 177
N.E.2d 194, 196 (Ill. 1961) (recognizing as “settled . . . that a valid joint tenancy
may exist in an undivided interest”). The interest Kandi Hall held in the joint

                                           7
tenancy divested at her death. See Seehafer v. Seehafer, 2005 ND 175, ¶ 19, 704
N.W.2d 841. To satisfy Tyson Hall’s elective share, the value of Kandi Hall’s joint
tenancy interest in the three-fourths interest is included in the augmented estate.
N.D.C.C. § 30.1-05-02(2)(b)(1)(b); Estate of Krueger, 2019 ND 42, ¶ 9, 923 N.W.2d
475. Thus Kandi Hall’s estate holds title to a one-quarter interest in the property, and
McLaen holds title to a three-fourths interest in the property. The augmented estate
includes five-eighths of the value of the property: the value of Kandi Hall’s one-
fourth interest plus half the value of McLaen’s three-fourths interest.
[¶22] The district court erred by finding any conveyance of the property to McLaen
was void, McLaen does not own a valid interest in the property, and the entire value
of the property was includable in the augmented estate. The court also erred by
ordering McLaen is divested of her interest in the property and must issue a quit claim
deed conveying her interest in the property to the estate’s personal representative.


                                          IV
[¶23] McLaen argues the district court erred by failing to order the estate to
reimburse her for the 2015-2017 property taxes and insurance she paid on the
property. She alleges that after Kandi Hall’s death she paid $3,735.32 for overdue
property taxes and $609.20 for property insurance. Tyson Hall admits the property
taxes should be paid, but claims the court ordered the estate to pay the taxes because
the court found the estate’s debts included taxes and stated the conveyance of the
property to Tyson Hall was subject to all liens and encumbrances including claims
against the estate.
[¶24] The district court did not specifically address McLaen’s request for the costs
in its order. Tyson Hall concedes the estate should reimburse McLaen for the
property taxes, and we agree. On remand, the court must explicitly order the estate
to reimburse McLaen for the 2015-2017 property taxes.
[¶25] Tyson Hall argues the district court did not err by failing to order him to
reimburse McLaen for the property insurance because McLaen was named as loss

                                           8
payee on the policy, the policy did not benefit the estate, no insurance was required
on the property, and no one asked McLaen to take out the insurance. There was no
evidence McLaen was required to take out insurance on the property. We conclude
the court did not err by failing to order the estate to reimburse McLaen for the
property insurance.


                                          V
[¶26] We reverse the district court’s order and remand for the court to enter an order
consistent with this opinion.
[¶27] Jerod E. Tufte
      Daniel J. Crothers
      Jon J. Jensen
      Daniel S. El-Dweek, D.J.
      Gerald W. VandeWalle, C.J.
[¶28] The Honorable Daniel S. El-Dweek, D.J., sitting in place of McEvers, J.,
disqualified.




                                          9
