In re Estate of Welch

186 N.W. 118 | S.D. | 1922

GATES, P. J.

Certain serious matters of practice are raised, but, without expressing an opinion thereon, we decide the case upon the merits.

Thercile Welch, a widow, a resident of Meade county, died in A'pril, 1918. A petition for the probate of her will was filed by one 'Stephens, in which it was recited that he was named as executor in the will, that the will was in existence at the time of her death, and that it was accidentally lost after her death. The copy of the will presented for probate discloses that, aside from specific bequests to a niece, Shirley Ea Elamme, and also a devise of the homestead to her, the residue of the property was devised and bequeathed to the sisters and brothers of decedent, viz.: Zoe Ea Plant, Eeocadzie Marion, Peter La Elamme, Nazaare La-Elamme and Louis La Elamme. At the time of the death of testatrix the niece, Shirley- La Elamme, was married to one Ruen-holl. She died after the will was probated. The will was probated July 1, 1918. At the hearing, all of the beneficiaries under the will, and all persons who would have taken under the law of succession in case there had been no will, were represented.

Nearly a year after the probate, viz. on June 27, 1919, the brothers and sisters of testatrix sought to contest the will, by filing a motion to vacate the order probating the will, on the grounds that the county court never acquired jurisdiction to make it, and never did legally make it, in that the proof of the lost will was taken by affidavits, instead of by complying with the section of the statute, now section 3.213, Rev. Code 1919, and that the lost will was not proved, even by the affidavits, to have been in existence at 'the timé of testatrix’s death; nor proved to have been fraudulently destroyed .in her lifetime. After a hearing the motion was denied by the county court. An appeal therefrom was taken to the circuit court with like result. Therefrom the brothers and sisters appealed to this court.

The following are among the findings of the trial court:

“The county court, by its order, designated May r8, 19:18, at his office at Sturgis, South Dakota, as the time and place of hearing said petition. Due and legal notice of the hearing as required by law and the order of the court was duly given, both by publication and mailing, to all the heirs, devisees, and legatees under said will, all of whom were represented at the 'hearing by their respective attorneys, .Shirley La Flamme Ruenhall by L.' M. Sim-ons, and John M. Stephens and appellants by Schrader & Lewis, all of said appellants, except Nazaare La Flamme, being personally present in court, and that Schrader & Lewis were authorized to so appear for and represent appellants.

“The court further finds that at the time set for the hearing^ the will not having been found, the said attorneys for the respective parties- agreed, in open court, to dispense with the statutory procedure in -such cases provided, and establish the same by affidavits filed in said county court, to which procedure all persons interested in the estate and last will, including appellants, consented and acquiesced; the said Nazaare La Flamme being one of the parties who made an affidavit for such purpose and filed the same in said county court.

“The court finds that on the 1st day of' July, 1918, parties duly appeared pursuant to adjournment in the said county court of M!eade county by their respective attorneys in the matter of the proof and probate of said lost will of Thercile Welch, deceased and duly presented and filed in said county court written affidavits of Nazaare La Flamme, Nellie Home, John F. Schrader, and Clarence L. Lewis, four credible persons, duly signed and verified by each of them, respectively, in proof of the due execution of said lost will, its terms and provisions, and that the same was in existence at the time of the death of the said Thercile Welch, deceased, not destroyed or revoked.

[1] These findings are clearly sustained by the evidence. Little more need be said in order to justify the decision of the trial court, excépt that the irregularity complained of, in that the provisions of the statute, now appearing as sections 3213-3215, Rev. Code 1919, were not strictly complied with, do not -go to the question of the jurisdiction of the county court to probate the copy of the will, nor does the alleged insufficiency of the evidence to Sustain the finding of the county court that the will was in existence at the time of testatrix’s death present a question going to the jurisdiction of the county court. Calhoun v. Bryant, 26 S. D. 266, 133 N. W. 266.

[2] All of the parties in interest, whether or no there was a will, were before the court, and' it was competent for them to waive a strict compliance as to matters of procedure. It was also competent for them to agree that the will was in existence, if they so chose. . That adjudication then made was strictly in accordance with their then wishes. The subsequent attempted contest was not based upon anything that had been discovered- since the probate of the will (Rev. Code 1919, § 3231), but was based upon irregularities of which they knew, or are presumed to have known, at the time of probate, and which they then waived. They may not now be heard to assert them.

The judgment and order appealed from are affirmed.

SMITH, J., not sitting.