¶1On Petition for Rehearing.
¶2The plaintiff has petitioned for rehearing. She raises two points. The first deals with the presumption of undue influence which she claims arises by virtue of Section 59-01-16, North Dakota Century Code. This section provides that all transactions between a trustee and a beneficiary, during the existence of the trust by which he, the trustee, obtains any advantage from a beneficiary, are presumed to be entered into by the beneficiary without sufficient consideration and under undue influence. The plaintiff’s claim is based on the fact that Lona was the administrator of the estate of Peter O. Johnson, deceased, and that the plaintiff is an heir. This is not a new argument. It was raised in the original brief and considered by the court as not being applicable in this case. It was not overlooked as the plaintiff suggests. We adhere to our decision in the original opinion. Lona does not obtain any advantage from the plaintiff because she signed the family settlement agreement. Lona as administrator of the estate, with or without the agreement, receives no additional benefits and no advantage from the plaintiff. The family settlement agreement merely provides for a division of property between the heirs in the estate. The administrator Lona is not a party to the agreement. This statute has no application.
¶3Secondly, the plaintiff, in her petition, quotes from the opinion as follows:
“The following day she made her decision and advised the defendant, Lona, that she would sign a family settlement agreement and agree to a division of the property of the estate including the jointly held properties, in equal shares, one-fifth to each.”
¶4She argues that an examination of the transcript and all of the documents relating to the appeal, and the appellants’ statements of the issues, did not establish any factual basis for the proposition that she agreed to a division of the “jointly held property.” She argues in her petition that this question remains to be determined. She states it “may or may not” be a question in the county court, or an appeal therefrom, or it “may or may not” be the subject of a separate action.
¶5The family settlement agreement is set forth in the original opinion. The salient part thereof provides:
“3. In view of these facts, we the heirs of the Estate of Peter O. Johnson, do hereby declare that the assets be grouped in a lump sum (joint tenancy disregarded) and the Estate, after all expenses have been paid, be divided as follows
… ⅜ ⅜ …
¶6This is an issue which the plaintiff did not raise, either at the trial of the action in the lower court, or on appeal. It is interesting to note that in paragraph IV of the plaintiff’s complaint in this action, she alleges that the agreement obtained by *61fraud and duress, “ … purports to take from plaintiff property owned in joint tenancy between Peter O. Johnson and plaintiff and as to property owned between the parties in joint tenancy with right of survivorship or payable on death to plaintiff is entirely void and of no force and effect and said agreement as fraudulently obtained is additionally without any consideration whatsoever as to the property in the estate of Peter 0. Johnson and as to property jointly owned with right of survivor-ship or jointly owned or payable to plaintiff on death.” Further, in the defendant’s brief as respondent in the appeal, beginning on p. 97 thereof, she states that it is necessary for her to show in this action that she was damaged. She then proceeds to point out the manner in which she was damaged by setting forth a schedule of the assets of the estate, together with their values, and showing the distribution, if made under the laws of succession, and adds thereto the value of the property held in joint tenancy with the deceased, or payable on death, thus showing a total amount received by each in the event the family settlement agreement is set aside. Then, in comparison to these amounts, she adds to the assets of the estate the value of all the properties held jointly and/or payable on death and subtracts therefrom the expenses of probate and divides the balance by five to establish the amount that the plaintiff will receive if the family settlement agreement is sustained. Because this amount is smaller than the amount she would receive if the family settlement agreement were set aside, she argues it justifies her standing in court as being damaged. It is clear that both parties, for the purpose of this action, construed the family settlement agreement as including the jointly held properties and those payable on death as being included in the division to be made if the agreement was held to be valid.
¶7The complaint contains no alternative prayer asking for a construction of the agreement if it is declared valid, nor was this issue presented to the trial court or to this Court on appeal. It is raised for the first time in this petition. This action was instituted for one purpose, to-wit: an attempt to set the family settlement agreement aside as being null and void in its inception on the ground that it was obtained by fraud, duress and undue influence. We ordered the action dismissed. No issue was raised by the pleadings and no issue arose at the trial relative to the construction to be placed on the instrument or the property. The judgment on remittitur to be entered dismisses the complaint and adjudicates that the family settlement agreement will not be set aside on the grounds of fraud, duress, or undue influence in its inception, and no more.
¶8The petition for a rehearing is denied.
¶9PAULSON, KNUDSON, STRUTZ, and ERICKSTAD, JJ., concur.