Bechard v. Union County

• Decision Date: 19 May 1947
• Docket Number: 8746,8750.
• Parties: BECHARD et al. v. UNION COUNTY.
• Court: South Dakota Supreme Court

27 N.W.2d 591

71 S.D. 558

BECHARD et al. v. UNION COUNTY.

Nos. 8746, 8750.

Supreme Court of South Dakota

May 19, 1947

A. J. Beck, of Elk Point, for respondents.

O C. Donley, of Elk Point, for appellant.

ROBERTS Judge.

Godfroy Bechard died February 3, 1904, leaving a will which was thereafter admitted to probate. The will, omitting parts not material to this controversy, reads as follows:

'3. I give and devise to my son, Frederic Bechard, for and during the term of his natural life, the following described real property lying in said County of Union, to-wit:--All that part of the North East quarter and of the North half of the South East quarter of Section Thirteen (13), in Township Ninety (90), of Range Forty nine (49), that lies North and East of the right of way of the Chicago, Milwaukee and Saint Paul Railway Company as the same is now located, and from and immediately after the death of the said Frederic Bechard then I give and devise said real property, in fee simple, to the heirs of said Frederic Bechard.

'4. I give and devise to my son, Alonzo Bechard, in fee simple, the following described real property, lying in said County of Union, to-wit: the South half of the South East quarter of Section Twelve (12), in Township Ninety (90) of Range Forty nine (49), subject however to the payment of the following charges, which I hereby charge upon said last described real property, to wit:----

'(1). All my just debts which shall be proven against my estate in the due course of administration all all expenses of such administration.

'(2). The payment to my daughter, Eugenie Loiselle, of the sum of One thousand Dollars, to be paid within six years after my decease, in five equal payments payable in two, three, four five and six years after my said decease, and bearing interest, from and after the expiration of one year after my decease, at the rate of six per cent per annum, payable annually, it however being optional with my said son, Alonzo Bechard, to pay said One thousand Dollars at any time with interest to said time of payment.

'6. I expressly declare that it is intentional on my part to bequeath or devise nothing to my said daughter, Eugenie Loiselle, other than the charge heretofore made for the payment to her of the sum of One thousand Dollars and no more.'

On September 17, 1904, the county court of Union county made and entered a decree of distribution, and so far as material here, reads as follows:

'Alonzo Bechard, executor of the last will and testament of Godfroy Bechard, deceased, having on the 6th day of September, 1904 filed in this court his petition * * * and it appearing * * * that the * * * devisees are entitled to the residue of the said estate in accordance with the terms of said will * * * It is hereby Ordered, Adjudged and Decreed, That the residue of said estate of Godfroy Bechard deceased, hereinafter particularly described and now remaining in the hands of said executor, be and the same is hereby distributed as follows, to-wit: * * * (Describing the land here involved) to Frederic Bechard, for and during the term of his natural life; and from and immediately after his decease, then, in fee simple, to the heirs of said Frederic Bechard.

'And the Court finds that no debts of said deceased were proven against his said estate and no claims of any kind presented and that all expenses of administration herein have been fully paid by said Alonzo Bechard. All property belonging to said estate, not known or hereafter discovered, is distributed in equal parts to Ephrem Bechard, Alonzo Bechard, Eugenie Loiselle and Frederic Bechard.' The trial court's findings on the decisive issues are in substance as follows: That Frederic Bechard died intestate August 1, 1941; that he was survived by the defendant, Eugenie Bechard Loiselle, a sister, and the plaintiffs herein, Edward Bechard, Beatrice Kvam and Mary Louise Walter, children of a predeceased brother, Ephrem Bechard, and Jeanne Bechard Stack and Alair Bechard, the children of Francis Bechard, deceased son of Ephrem Bechard; that Eugenie Bechard Loiselle and Edward Bechard in February, 1922, by separate deeds conveyed to Frederic Bechard all the right, title or interest that they might acquire in the property involved in this action; that Frederic Bechard and his wife, Margaret, during the year 1926 executed two mortgages on said land to secure the payment to Union County of two promissory notes in the principal amount of $5,000 each; that defaults having occurred in the terms of such school fund mortgages, the premises were sold on March 7, 1932, on foreclosure sales to Union county; that no redemptions having been made, sheriff's deeds were issued to the county April 4, 1933; and that Union county has not since the time it acquired possession of the premises under the sheriff's deeds maintained or repaired the improvements on the land and by its failure to repair and maintain has caused a material decrease in the value of the remainder interest in the property.

As conclusions at law the court found that Frederic Bechard acquired under the will a life estate; that defendant Eugenie Bechard Loiselle acquired no interest whatsoever under the terms of the will in the real property; that defendant Union county is entitled to an undivided one-fourth interest in and to the real property involved in this action; and that Beatrice Kvam, Mary Louise Walter, Jeanne Bechard Stack and Alair Bechard are entitled to an undivided three-fourths interest in such property. Judgment was entered accordingly.

The case is here on two appeals. Plaintiffs have appealed from those parts of the judgment quieting title in the county to an undivided one-fourth interest and offsetting certain rentals collected by the county against unpaid taxes. The county appealed from that part of the judgment quieting title in the plaintiffs to an undivided three-fourths interest in the premises.

The principal question presented for determination is whether Eugenie Bechard Loiselle was excluded from participating as an heir of Frederic Bechard. The court below found that she acquired no interest whatsoever under the terms of the will of her father in the real property. The county court had the equitable power to construe the will so far as it was necessary in order to distribute the estate; it could not decree a distribution without construing the will. In re Sjurson's Estate, 29 S.D. 566, 137 N.W. 341; Thompson v Lake Madison Chatauqua Ass'n of South Dakota, 41 S.D. 351, 170 N.W. 578; Woolley v. Woolley, 52 S.D. 193, 217 N.W. 196; Kirby v. Western Surety Co., S.D., 19 N.W.2d 12. Counsel for the county relies upon the settled law as announced in these cases and contends that the county court in the exercise of its jurisdiction to construe the will determined that it was the intention of the testator to place his daughter on a parity with the other heirs with respect to all property belonging to the estate not known or subsequently discovered and not to exclude her from participating as a remainderman. Plaintiffs, on the other hand, contend that the decree of distribution should be construed in its entirety and effect should be given to every word and clause contained therein. The decree recites that the 'devisees are entitled to the residue of said estate in accordance with the terms of the said will.' Plaintiffs claim that by this language the will was made a specific part of the decree and that the court below in giving effect to the decree of distribution was required to determine the rights of the parties under the will. The duty of the county court to construe a will implies that the court may erroneously ascertain the intent of the testator. If the court makes a wrong decision, it is still a final decision and binding on all parties interested in the...