In re Loevinger's Estate

167 N.W. 726 | S.D. | 1918

GATES, J.

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 executer turned said' money over to the trustee, .and! said! trustee has «elver since possessed and handled the money and accumulations in accordance with the provisions of the iwiill. On May 9, 1916, Moritz Loevinger began an action 'against the trustee and tire executor and his bondsmen to recover said bequest. On July 1, 1916, the execiutar petitioned! the county count for an order correcting ,the final decree entered in 1907. After notice to all parties, a hearing thereon was had, .and' the court entered am amended decree nuoc pro tunc as Of September 16, 1907, distributing «the money in accordance with the terms of the will. One of the findings' of fact upon which the amended decree was based recited that the original- decree was entered by mistake and inadvertence of the county court and the executor, and that it was intended (in truth and- in fact to' decree the micmey in accordance with the provisions of the wiil'l.

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:

[1] All courts of record have inherent power to-, miake their judgments Correspond, with' (the real judgment intended, and lapse of time, where other rights do not intervene, does not take away síuch power. Territory v. Cristensen, 4 Dak. 410, 31 N. W. 847; Schmidtgall v. Walshtown Tp., 27 S. D. 103, 129 N. W. 1042; Windedahl v. Harris, 37 S. D. 7, 156 N. W. 489; Freeman on Judgments, § 71; Black on Judgments, § 161; 23 Cyc. 866, 7 R. C. L. 1019, 15 R. C. L. 681. This rule in na way militates against the provisions! of section 308, Prob. Code, because that .sectilqn refers ta the real' judgment of the- court and not necessarily to the paper expression of it.

[2] The sufficiency of the evidence to> sustain the finding of the trial ¡court to the effect that the ¡decree as 'amended dud1 coniform to the real intention of (the court at the time the judgment -was; entered not being challenged1 upon appeal, we must take that finding as a verity.

The judgment appealed! from is ¡affirmed.