This appeal relates to 560 acres in McPherson County, South Dakota. On December 5, 1952, Jacob J. Spitzer and his wife, Elizabetha, executed a warranty deed purporting to convey this land to their two sons, Boas and Samuel. Jacob was the owner of the property. This instrument contained the following provision:
"Upon the death of both the grantors herein named this deed shall be delivered to the grantees herein named, upon paying to the grantors daughters the sums hereinafter set opposite their respective names:
To Erna Fauth the sum of $500.00
To Ruth Schmitt the sum of $500.00
To Naome Opp the sum of $500.00
To Edna Opp the sum of $500.00, each of the grantees named paying one-half of the above amounts stated."
Jacob J. Spitzer died intestate on December 10, 1959. Shortly after his funeral the mother requested Boas and Samuel to meet with her at decedent's home in Long Lake, South Dakota. They there examined some papers which were in a bedroom dresser drawer, among which was this deed contained in an envelope. On the envelope the following notation appears in decedent's handwriting: "Put this on Record — Mother & Boys." Neither of the sons had prior knowledge of the deed. On the same day Mrs. Spitzer and the two sons placed the deed in a safety deposit box at the Leola State Bank in the name of all *151 three. Boas Spitzer farmed most of the land prior to his father's death and continued to do so thereafter. He paid the taxes, maintained the fences, and delivered a share of the crop to his mother. This arrangement continued until the summer of 1966 when Boas attempted to buy the land from his mother. It was then discovered that record title to the land remained vested in Jacob J. Spitzer. Thereafter the deed was removed from the bank by the grantees and filed for record in the office of the Register of Deeds of McPherson County on July 26, 1966. Plaintiffs then brought this action to set aside the deed and quiet title to the land. The trial court determined the deed invalid, but declined to quiet title on the grounds that determining heirship is the function of the county court. The defendant, Samuel Spit-zer, appeals from that part of the decision and judgment which nullifies the deed. Plaintiffs appeal from that part of the decision which fails to determine heirship and quiet title. By stipulation the appeals were combined.
A deed, to become effective, must be delivered by the grantor during his lifetime. If it is executed only for delivery after the grantor's death, it is testamentary notwithstanding it is denominated a deed, and is valid only when executed in the form and manner provided by law for the execution of a last will and testament. McGillivray v. Wipf,
Turning to the facts in this case we find the deed was retained by grantors and found among the papers of Jacob J. Spitzer after his death. This constitutes strong evidence of nondelivery. Kelly v. Gram,
The defendant Samuel Spitzer contends Boas Spitzer and Elizabetha Spitzer are estopped to question the validity of the deed because by virtue of it, they have been receiving the fruits from the land. The essential element of the doctrine of equitable estoppel is fraud. There must be some intended deception in the conduct or declaration of the party to be estopped or such gross negligence on his part as to amount to constructive fraud, by which another has been misled to his injury. Kraft v. Corson County,
Having decided the deed was invalid, should the circuit court have proceeded to quiet title to the land in the heirs of Jacob J. Spitzer? Our Constitution (Art. V, § 14) gives the circuit court original jurisdiction of all actions and causes, both at law and in equity. It was thus intended to confer on circuit courts in the exercise of their equity powers the same jurisdiction over probate proceedings that was possessed by the federal courts at that time. Welsh v. Krause,
It is, however, well established that the circuit court will not exercise its equity jurisdiction to administer the estate of a decedent unless exceptional circumstances indicate the county court is unable to afford adequate Telief. Howe v. Larson, supra; Knodell v. Nelson,
The unlimited equity jurisdiction of circuit court in probate matters stands firm. The propriety of using it is flexible. While an improper assumption of that power may constitute an abuse, the proceedings in circuit court would not be void and subject to collateral attack for want of jurisdiction. In Newton v. Erickson, supra, and Welsh v. Krause, supra, language is used which seemingly limits the circuit court's jurisdiction rather than its exercise, and to that extent such decisions are expressly overruled.
It appears from the Memorandum Opinion that the language in Lass v. Erickson, supra, was taken by the trial court as persuasive authority to revert the cause to county court after disposing of the equity issue. We find the facts in that case distinguishable. In Erickson, there was cm appointed, qualified and acting administrator. The probate proceedings were suspended pending a determination in circuit court of the equitable issue as to whether there was a contract to make a will. The administrator had also commenced an action to recover funds in a bank in the form of certificates of deposit and a checking account. Some of the heirs at law of decedent were not parties to the action. When the circuit court decided no contract to make a will existed, orderly procedure required that the county court continue with a settlement of the estate, Haugen v. Peterson,
No probate of the Jacob J. Spitzer estate has been commenced. However, his unknown creditors are named as defendants and were served by publication in this action. His widow and children are all parties thereto. The State inheritance tax obligations have been resolved. Almost a decade has elapsed since the death of decedent. The validity of the purported deed was a special circumstance which necessitated invoking the equity powers of circuit court. A probate of the Jacob J. Spitzer estate in county court would not afford the speedy and adequate remedy required. Doling v. Hyde County,
Notes
For related cases see 87 A.L.R.2d beginning on page 804.