170 N.W. 578 | S.D. | 1919
Action to determine title to a tract of real estate, formerly owned by one B. B. ’died in 1880 leaving a will. The printed record shows that this will was duly probated, and decree of final distribution entered and recorded in the year 1883. By one clause of said will all of B’s property, other than some small legacies and a government tree claim, was devised1 and ‘bequeathed to his wife. Under this clause it is clear that a fee-simple title to the land now in question would have vested! in the wife. This clause was followed by one which respondents contend was merely precatory in nature and effect; but appellants contend that it denotes a clear intent on the part of B. to devise to his wife a life" estate in this land with a contingent remainder over to appellants. The decree of distribution adjudged that said land “be and the same is set over unto Melissa Baker, here heirs and assigns as provided! in and by the terms of the wil aforesaid,
“The proceedings of this [probate] court are construed1 in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, anidl to its records, orders, judgments and decrees there are accorded like force, effect and legal presumptions as to the records, orders, judgments and'decrees of circuit courts.” . •
The above section is clear in its wording, and means just what it says, and the decree of distribution now before us was conclusive upon the appellants as well as upon Melissa Baker. Blackman v. Mulhall, 19 S. D. 534, 104 N. W. 250; Phillips v. Phillips, 13 S. D. 231, 83 N. W. 94; Matson v. Swenson, 5 S. D. 191, 58 N. W. 570; Sjoli v. Hogeson, 19 N. D. 82, 122 N. W. 1008; Stenson v. Halverson Co., 28 N. D. 151, 147 N. W. 800; L. R. A. 1915A, 1179, Ann. Cas. 1916D, 1289.
It follows that by such decree, whether it was erroneous or not, it was effectually adjudged that the will gave Melissa Baker the fee title to said land. We might well suggest in passing that, in Jackson v. Littell, 213 Mo. 589, 112 S. W. 53, 127 Am. St. Rep. 620, in which'the court 'had before it a will wherein one clause was a clear grant of a fee to testator’s wife and wherein such clause was followed by a clause practically identical in its wording with the clause in the will before us, which clause appellants insist denotes an intent to give the widow but a life estate,
In view of our holdings on the questions already discussed, it becomes unnecessary to consider other questions presented.
The judgment and1 order appealed from are affirmed.