*1 In the Matter of ESTATE OF Jacob
WOLFF, Sr., Deceased.
No. 14182.
Supreme Court South Dakota.
Argued Nov. 1983. 9,May
Decided 1984. *2 deeding
Prior to the two tracts of land to Arthur, decedent, Erwinn and who was immigrant parents born and was not proficient English, in following wrote the 14, to Jacob in September Jr. a letter dated 1972:
I had sent Arthur and Erwinn the Deed for their they land. So from now on did anymore not have to send rent from the land that is Deeded to them and about land, your yet. I don’t know See how it turning buy out. Erwinn can it or rent cash, for from you now on. Or what did think? thought buys I if I it can make the Deed to him. If he rents for you. cash make the Deed to It is 760 Bryan Lonnie F. of Wallahan Law Of- acres of land. All the land on the South Rapid City, appellants fices for Arthur and side of the road Sec 3—Sec 4—Sec 5— Erwinn Wolff. it, Sec buy 9—and Sec 10. So he I deed Beal, George Rapid City, appellee for it, it to got him. If he rent he to rent it Wolff, Jacob Jr. for you cash. But if want it to deed it to you, Say I will it? you do it the like it WOLLMAN, Justice. best. appeal This is an from a decree of distri- 1974, Decedent’s wife died in and Erwinn bution and an order entitled “Decision of moved to California to live with decedent. the Court” which held that there had been son, Lynn, Arthur’s possession then took an ademption of certain devises of land in place. the home decedent’s will. We affirm- age Decedent died in 1980 at Wolff, Sr., (decedent) Jacob accumulated eighty-six. pro- His will was admitted to 2,800 approximately acres of farm land in California, in exception bate and with the County Perkins Dakota. When South County, of the land Perkins South Dako- ta, decedent and his wife moved to California decedent’s estate was distributed sons, Jr., Arthur, his three Jacob equal pursuant shares to his three sons Erwinn, remained on the farmland. probate the California decree. The will Jr., farming Jacob who had been 762 acres probate was later admitted to in South Erwinn, place” known as the “home Dakota. The circuit court concluded that left delivery warranty South Dakota in 1957. decedent’s of the deeds Arthur, to Erwinn and when considered in In 1971 decedent executed a will which light September of decedent’s let- provided that in the event his wife should Jr., ter to Jacob constituted an predecease him, pass his estate should of their share proper- of the South Dakota his “equally, sons share and share alike.” ty- decedent and his wife deeded 1,000.16 County acres of the Perkins land “Ademption” is the term that de to Arthur for consideration of “one dollar inopera scribes either the act which makes good and other bequest and valuable considera- tive a specific property devise or tion.” decedent and his wife deed- the sale or property extinction of the 1,040 or, ed County during appli acres of the Perkins land lifetime testator’s as is hand, to Erwinn for the same consideration. The cable to the case at the satisfaction bequest money tracts of land deeded Erwinn and payment Arthur of a devise or and the remaining ap- delivery conveyance property 762 acres were of to a proximately beneficiary prior the same value. to the testator’s death. ordinary Neb. 290 Laws are to understood in their of McClow, In re Estate be (1980). (For re liberally N.W.2d 186 an excellent sense are and statutes to be con- history development of the of the objects view a strued with view to effect their ademption, Newbury v. 2-14-1; doctrine of see promote justice. and to SDCL (Iowa McCammant, 182 N.W.2d 2-14-12; Independent Community SDCL 1970).) Bankers Ass’n v. *3 (S.D.1984). SDCL ch. 29-6 does not deal ademption regarding The statutes are ex- exclusively personal property, and we clusive, we need not address therefore excluding can envision no rationale devises principles. common law rules and In re realty relating of from the statute to Will, 20, 80
Iversen’s
S.D.
ademption. Accordingly, we decline to re-
(1962).
“legacies”
strict the word
as used in SDCL
Although
ademp
that
there is
meaning.
29-6-14 to its technical
see,
legacies,
applies only
specific
tion
to
e.g.,
v. First Alabama Bank of
Samford
Arthur and Erwinn
that
contend
be
(Ala.1983);
Montgomery,
The doctrine of
to
debts,
pay
charges,
utors to
and adminis
bequests
personalty
of
and devises of
both
expenses.
tration
We need not discuss the
Krotzsch,
realty.
Ill.2d
In re Estate
60
of
residuary legacy
status of a
under SDCL
(1975); Newbury
letter. a statute similar to Jr. Given these we conclude that the 29-6-14, Supreme SDCL of Cali- Court determining circuit court did not err in that fornia held: writing requirement the letter satisfied the
It rule that special is the established no contained SDCL 29-6-14.
form, signature nor even of the dece- Arthur and Erwinn contend that the
dent,
charge
required
to constitute a
circuit court
in finding
erred
that there was
writing
prescribed
advancement
no consideration for the land deeded
by
statutes.
It will be sufficient if
such
writing
them
appears
treating
it
that the
was done
decedent and
the trans
gifts.
the decedent
shows the intent
fers of land as
Arthur testified at
charge
money
property given
hearing
on the final decree of distribu
gift
rather than as a
an advancement
tion that from 1952 until he received the
Unsigned statements in the form
loan.
County
paid
deed to the Perkins
land he
charge entered in a
of a
book or on
paid
taxes on and
decedent one-fourth of
*4
inserted at the back of a book of
leaves
the farm income
portion
from his
of the
accounts,
miscellaneous
the circumstanc-
percentage
profits
land. No
of the
any
being
es
such as to exclude the idea that
payment
other
was made to decedent for
debt,
charged
it
as a
have been
was
held
running
Erwinn,
cattle on the land.
who
sufficient.
testify,
did not
apparently had the same or
Hayne,
In re
165 Cal.
Estate
a
arrangement.
similar
Arthur also testi
of
(1913).
by
133 P.
279
As stated
anoth-
improvements
fied that he had made
on the
case,
er
court in a later
California
by having
dug
land
a
by placing
well
and
gift may
No
be taken as an advance-
keeping
fences where he was
cattle. Ar
ademption
general
ment or as an
of a
argue
thur and
payment
that the
of
legacy
expressed
unless such intention is
percentage
taxes and
of income as well as
writing
in
the
the
of
testator or the do-
making
improvements
the
of
constituted
No certain words or form
nee....
of
good and
pay
valuable consideration. The
writing
required
is
to constitute an ad-
decedent, however,
ments made to
were
vancement,
loan,
gift
rather than a
so
by
characterized
him in his letter to Jacob
long
writing
by
as the
was done
the
addition,
as rent.
Jr.
the deeds to Ar
and shows
decedent
that the intent was
stamped
thur and Erwinn are
exempt
as
charge
gift
against
such
or loan
the
the
from
real estate transfer
fee. After
portion of the estate which the donee or
reviewing
say
the evidence we cannot
that
otherwise
debtor would
have taken under
finding
the trial
regard
court’s
with
to con
the will or the laws of succession.
clearly
sideration was
erroneous. SDCL
Nielsen,
In re
Cal.App.2d
Estate
15-6-52(a);
of
Hobelsberger,
In re Estate of
(1959);
337 P.2d
see also In
(1970).
85 S.D.
Laws are to be liberally and statutes are to be con-
sense objects
strued with a view to effect their *5 promote justice.”
and to my opinion, Independent Community Ass’n v. is an execrable Bankers State WORDEN, Twila as Administratrix of prostituted our decision which state consti- Worden, the Estate of Harold Duane and, upon tution washed the sands of when Deceased, Appellant, Plaintiff and time, go infa- shall down constitutional my. CO., and The FARMERS STATE INC. purpose Bill The entire of Senate Co., Minnesota Mutual Life Insurance Laws, the 1983 Dakota Session South Appellees. Defendants and supposedly outlined in Section was No. 14316. generate income for South Dakota’s econo my. sponsored by Bill a bill Senate Dakota. Supreme Court of South absolutely of this has Governor on Feb. 1984. nothing promoting justice to do with and Considered Briefs being equat Bill bitterly resent Senate May 1984. Decided Economics, yes justice, justice. ed with — Legislature ap Dakota no. The South proved Bill 256 which allowed na Senate holding companies acquire
tional bank * intent, Congressional subject any holding further con- national bank com- Several out-of-state Congress.” Thereupon, panies, upon passage of Senate Bill imme- sideration applicants (out-of-state banking corpo- purchase diately began national to make overtures to " * * * instances, rations) requested suspend the Board to small South Dakota banks. some January processing applications.” reality. of their Id. at 2. On the Though overtures became Legislature the State and the South Da- of Governors of the Federal Reserve the Board spoken, patch- System Supreme Court have an official statement relative to kota issued banking ownership applications acquire work of state and federal state-chartered banks in " * * * Dakota, gist operation, a new insurance law tied in with South of which is that state, Independent judgment Commu- Board reached the tentative that it in this hibernates. Ass’n, approve proposed acquisi- nity case, to decide this bank Bankers could not germane. present expressions is not tions in view of law