167 N.W. 726 | S.D. | 1918
Appeal by Moritz Loeivinger from a judgment of the circuit court 'Within and for Davison county affirming an amended final decree of the county court of said county entered July 25, 1916, correcting nunc pro tunc a final decree oif distribution entered September 16, 1907.
By his last will -one Leonhard Loevinger disposed of a portion o-f his estate as follows':
“I give ,and bequeath to Ithe Mitchell Loan, Trust & Savings Company oif ■Mitchell, South, Dakota, in trust for my son, Moritz Loeivinger, the sum of two- thousand defers ($2,000.00); said -sum to be invested .by said company in first mortgagesi upon farm lands at the best rate of interest, consistent with, safety. That said Mitchell Loan, Trust & Savings Company shall pay to my said1 slain Moritz such proportion of the income or principal as my executor under tbi® will hereinafter named shall determine and direct as. necessary for the proper support of my said son Moritz, whienevr he cannot, for any cause,, properly support Mmself by his own labor. That upon the death oif my said son Moritz I hereby be¡q|ueath toi his heir® all the unexpended portion of said1 sum- of two- thousand' dollars> ($2,000.00) and accumulated! income thereof, then held by the said Mitchell Loan, Trust & Savings Company.”
The final decree entered lia the matter of the estate Of said-testator entirely omittedl any reference to the trustee and awarded said sum of money absolutely to said Moritz Loevinger; but the exe
It is Contended' by appellant 'that subdivision 10 of section 25, Prob. Code, as amended' by chapter 63, Laws. 1909, is not applicable to judgments entered prior to its taking effect; that, after the time for appeal therefrom elapsed, the- original decree became Conclusive as to the rights of appellant because of the provisions, of section 308, Prob. Code; and that the county court was without jurisdiction! to entertain the application to amend:
The judgment appealed! from is ¡affirmed.