26 S.D. 615 | S.D. | 1910
One Nelson died a resident of Clay county, S-. D., leaving a will in which appellant was named as executor. Such will was admitted to probate .and the appellant appointed executor. Said estate having been fully administrated upon, the appellant, as executor, presented to the county court his final report, together with a petition for distribution of the éstate. Date for hearing such final report arrived and no objection being filed thereto, such report was, by decree of the county court, in all things approved and allowed. Within a very few days and prior to final distribution of said estate, the -heirs of the deceased petitioned such county court to reopen the said decree allowing final report and to consider certain objections which they presented thereto. Order to show cause based upon such petition issued, and, upon the return thereof, the county court refused to open said decree;-the court, in its order, basing such order upon the ground,
The circuit court in its judgment found, “that the county court erred in each and all of its considerations and findings in its order, * * * and erred -in making said order; that sufficient cause is shown by said petitioners, Muriel Catinca Eeikvold and Margret Euella Leikvold, the minor persons above named, for opening said decree, allowing the final account of said executor and for re-examining said account.”
All the matters herein appear of record; there is, therefore, no dispute as to the facts. Appellant contends that the decree of the county court should have been affirmed for each one of the four reasons set forth in appellant’s objections to respondent’s petition interposed in the county court, and in order to understand the questions thus raised a brief recital of the facts is necessary.
The deceased, Erick Nelson, had, prior to making his will, executed several deeds describing tracts of land owned by him, such deeds running to different of his children as grantees, which deeds had not been delivered to said grantees, but had been left in escrow with appellant. In the year 1904, he made his will, which provided that all of his property -that had not been deeded away, “as hereinafter -mentioned,” should be divided among his children. The will further -called attention to the fact that deeds had been theretofore executed, and might thereafter be executed, covering testator’s lands, an-d that the same had been or would be -delivered to testator’s executor to hold in escrow, and to be by such executor
Appellant contends that he was entitled to the commissions claimed, but in support of such contention does not attempt to maintain that said lands were conveyed by the will and were a part of the estate. He claims that there was a trust imposed upon the executor in regard to the real property and the title thereof, and that it became the duty of appellant, as trustee, to have the property appraised for taxation purposes, under the inheritance tax law of this state. Appellant contends that, as a trustee of such property, he was, under the statutes of this state (no compensation being fixed by agreement), entitled to the same compensation as trustee that he would have been as executor, if the land had passed as a part of-the estate. The fallacy of these positions needs little argument to expose same. Appellant as executor had nothing to do with appraising the land. The appellant never became a trustee of said land, but merely the trustee or custodian of the paper deeds relating thereto. If a- mere deposit of title papers constitutes a repository the trustee of the lands described in such papers, and, as such trustee, entitled to the fees allowed an executor for handling an estate, it would be well for the public to be advised thereof lest they fall victims to the rapacity of banks and trust companies that are. accustomed to be made repositories for title papers in dosing land deals. Even if, under the statute, the appellant believed he was legally entitled to retain the unconscionable sum claimed by him, still he could not but recognize -the fact that such a sum was unconscionable. We have no hesitancy in saying that the amount of compensation fixed by statute, based upon the value of the personal estate and.which amounted to some $115, would be an exceedingly liberal recompense for all services -both legal and otherwise performed by appellant, or the firm of which he was a member-, and that the county court should not have allowed more.
The question thus presented to us resolves itself to the one point, whether or not the county court had jurisdiction to act upon a petition seeking to reopen the decree in order to right the error the court had committed. The circuit court, in holding that the county court had such jurisdiction, clearly based its holding upon the fact that the petition was presented on behalf of, not merely the adults, but also the minor heirs; and we take it that it was undoubtedly the view of the circuit court, that the relief prayed for could not have been granted under proceedings by petition and motion, if such moving parties were adults, but that adults would have to be left to the remedy by appeal from said decree, or to such remedy as they might have through an independent action in another court. It is, therefore, clear that the circuit court based its judgment upon section 287 of the Revised Probate Code, which reads as follows: “The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate, 'saving, however, to all persons laboring under any legal disability, their right to move for cause to reopen and examine the account, or to proceed by action agains't the executor or administrator, either individually or upon his bond, at any time before final distribution ;• and in any action brought by any such person, the allowance and settlement of such account is prima facie evidence of its correctness.”
Appellant contends that ft is apparent, upon the face of the petition presented to the county court, that it was not presented under the above section, but must have been presented upon the
We are of the opinion that the appellant is wrong in his contentions. Conceding that the record clearly shows that there was no "oversight, accident, or mistake,” yet the petition clearly and fully showed that the allowance of the attorney’s fee and commissions in question was an error. Such petition also showed that it was presented upon behalf of the two minors. Striking from said petition all the allegations concerning “oversight, accident, or mistake,” thus rendering the petition of no force so far as the adult heirs were concerned, yet there would be a petition signed in behalf of the minors, reciting the fact of their minority, and setting forth facts showing the decree to be wrongful as a matter of law. Certainly such petition is all that is necessary under section 287, supra.
The aim of our Probate Code is clearly to make the decree allowing a final report a finality so far as that court is concerned, and to compel those aggrieved to resort to an appeal or other relief in. some other court. The only exception from this strict rule being in favor of those under disability, and to them is given an absolute right to seek, by petition in county court, what adults must seek elsewhere, but granting this privilege only until final distribution of -the estate. The “legal disability” referred to in
We have, therefore, a petition setting forth all necessary facts, signed by a proper person, and presented within the proper time. If was clearly the duty of the county court to recognize the same, to open up the decree, and to correct the error therein.
The judgment of the circuit court is affirmed.