168 N.W. 630 | S.D. | 1918
The important question up-on this -appeal is whether the -county -co-urt, -ini the -course of administration- of -the estate o-f a decedent, h'as- jurisdiction to- enforce the equitable dolctrine of election. Pomeroy, Eq. Juris. §§ 461-5119; Bispham, Eq. (4th Ed.) §§ 295-306; Alexander on Wills, §§ 813-839; Jarman on Wills (6th Ed.) §§ 531-557; Schouler, Wills, Executors, and Administrators (5th Ed.) § 1489a.
The portions of the last will of Benjamin Prerost, executed November 21, 1913, -material to this appeal, are -as follows-:
“Second. To -my s-onj Albeit M. Prerost, I give, devise -and bequeath all of the personal property to- me belonging, excepting moneys, mortgages, notes and dioses in action, saidi personal -property consisting of cattle, -horses, 'hogs., farm1 machinery, etc., and being located in Sanborn county, South' Dakota, -o-n real estate belonging to me, I -als-o give and -devise to said Albert Prerost the sum -of o-ne thousand1 ($1,000) -dollars in cash. * * *
“Fifth. To my daughter, Josie De Camp, I give, devise and bequeath the southeast quarter o-f section eight (8) in township- one hundred six (106) in range sixty-two (62) in -Sanborn- county, South Dakota. * * *
“Tenth. The residue -of my estate, both real --and personal, no matter where situated or -located) I give, devise and bequeath, share and share alike, to Albert M. Prerost, Joseph F. Prerost,*540 Mary Schaffer, Josie De Cam-p,--anid- Frances > -Druse, sons and daughters, and John Prerost, adopted son.”
:Unless' otherwise .specified, the word “paragraph” herein refers to a paragraph of -said will. ■ • ■
It was, stipulated that the value of the -cattle, -horses-, bogs, and farm machinery mentioned in paragraph 2 was the sum of $3,000, and that Albert M. P;reros-t, claimed' said property -independently of the .will, which' -claim w;a9 disputed ¡by those adversely interested. It -was further stipulated that the net value-of certain grain -sold by the executors was $748.90. It was further 'stipulated that the real property devised by paragraph 5 was, at the time of testator’s death, -olf the value -of $8,000, and that in- an action in the circuit court begun subsequently to -testat-oi-’s- de'aith, in which Albert M. Prerost was plaintiff and the executors anid heirs at law of -decedent were -defendants, if -was adjudged that Albert M. Prerost wa-s the owner of shid real property by virtue of an unrecorded- deed delivered by -testator to him in December, 1912. It was further stipulated that the value of each share of the residue under paragraph 10 was -about $i,ooq.
It -w-as the contention- iclf Josie De Camp that, Albert M. Prerost having elected to take.-adversely to the will the real estate devised to her by paragraph 5, she was entitled to have awarded to her by the final decree of distribution all o-f the -bequests to Albert M. Prerost, in view of the fact that they aggregated a -lesser amount than the value of such real estate, viz.:
(a) Cattle, horses, hogs and machinery (par. 2)........$3,000.00
(ib) Grain sold ;by executors (par. 2).................. 748.90
(c) Money bequest (par.2)............................ 1,000.00
(d) Residuary 'bequest (par. 10) -about.........•........ 1,000.00
$5,748.9°
The -county court distributed the property -of decedent in accordance with ithe terms of the will, except the said real estate, which it distributed in accordance with the said judgment o-f the circuit'court. Upon- appeal to toe circuit -court from' toe final 'decree of distribution, that count distributed toe property -as did the county court, except that -it made no 'distribution of s'aid' real estate, -and except that it adjudged that the c-attle, horses, -hogs, and machinery belonged1 to Albert M. Prerost at the time of testator’s
“That -the -appellant in this proceeding is not entitled! to the relief prayed for by her. That this Court is not in- this proceeding possessed of jurisdiction -to grant the relief prayed for by appellant.” '
From the portions of the judgment relative to above items (a), (b), (c), -and (d), and! from an order denying a new trial, Josie De Oatn-p -appeals.
“County Courts shall be courts of record1 and shall have ori*542 ginal jurisdiction! in all matters of probate, guardianship1, and settlement of estates of deceased person's.”
The overwhelming weight of decisions under sluch a definition of authority is to the effect that such courts have such equitable jurisdiction as may be necessary to the exercise of their proper functions. Woerner, Law of Administration, § 149; Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458; Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Toland v. Earl, 129 Cal. 148, 61 Pac. 914, 79 Am. St. Rep. 100; Estate of Freud, 131 Cal. 667, 63 Pac. 1080, 82 Am. St. Rep. 407; More v. More, 133, Cal. 489, 65 Pac. 1044, 66 Pac. 76; In re Wynea’s Estate, 40 S. D. 416, 167 N. W. 394; 15 Corp. Jur. 1011, 1016. *
Again if Albert M. Prerost had' not been a beneficiary under the will, we do not 'advance the opinion that the county court would have had authority to determine whether his unrecorded deed or the devise to Josie De Gamp should prevail. *
In those states where the right of dower still exists, it is generally held or assumed that the widow must, before distribution, elect whether she will take her dower interest or under the will adversely thereto, although of course in many states the time in which such election! shall be made is regulated by statute. 4 L. R. A. (N. S.) 1033, note. In Cunha v. Hughes, 122 Cal. 111, 54 Pac. 535, 68 Am. St. Rep. 27, if was held that by failing to. assert her right to community property upon distribution the widow of decedent was presumed to have elected to take under the will.
The portions of the judgment appealed, from and the order -denying a new -trial are reversed, and the cause is remanded1 to the trial court for further proceedings not inconsistent with 'this opinion.