Estate of Lingscheit, Matter of, 15049

Citation387 N.W.2d 738
Decision Date28 May 1986
Docket NumberNo. 15049,15049
PartiesIn the Matter of the ESTATE OF Louis Dale LINGSCHEIT, Deceased.
CourtSupreme Court of South Dakota

Robert G. Marmet of Marmet & Armstrong, Centerville, for appellants Daniel Thompson, Keith Thompson, and Wayne Thompson, individually and on behalf of their children; Kathleen J. Armstrong of Marmet & Armstrong, Centerville, on brief.

Henry Horstman of Horstman, Braley & Luebke, Parkston, for Executor Francis Laber.

James D. Taylor of Tinan, Padrnos, Smith & Taylor, Mitchell, for appellee Estelle Lingscheit.

HENDERSON, Justice.

PROCEDURAL BACKGROUND/FACTS

This is an appeal from a Decree of Final Distribution of (Lingscheit) Estate. We affirm in part, reverse in part, and remand.

Louis Dale Lingscheit (Decedent), died on March 14, 1981. Decedent had a valid will and at the time of his death, Decedent was domiciled in Oklahoma. Decedent left no issue, but he was survived by his wife, Estelle Lingscheit (Wife), three nephews, Wayne, Keith, and Dan Thompson (Nephews), and the Nephews' children. Wife apparently has issue of her own.

Decedent owned real and personal property in Oklahoma and South Dakota. By his will, as concerns the South Dakota property, Decedent devised a quarter section of Hutchinson County farmland to Norman Kummer; devised a life estate to his Nephews in another quarter section of farmland, with the remainder to the Nephews' children; devised a house located in Parkston to the Nephews in fee; and bequeathed all South Dakota personal property to the Nephews outright. Decedent acquired all South Dakota property through inheritance.

As concerns the Oklahoma property, Decedent, by his will, directed that funds located in Caddo County, Oklahoma, be placed in trust with interest payable to Decedent's Wife during her lifetime, with the remainder to the Nephews; directed that all of his machinery, vehicles, and tools be sold and the proceeds delivered to the trust; devised and bequeathed all property in Comanche County, Oklahoma, to Wife outright; and devised to Wife a life estate in real property located in Caddo County with the remainder to the Nephews.

In July 1981, Decedent's will was admitted to probate in Oklahoma and on August 20, 1981, Wife filed, in Oklahoma, an Election to Take, which announced her election to take under the Oklahoma laws of succession rather than under Decedent's will.

On August 31, 1981, Francis G. Laber (Executor), the individual named in Decedent's will to act as executor in South Dakota, filed a Petition for Letters Testamentary and for Independent Administration of Estate in circuit court in Hutchinson County, South Dakota. Notice of Hearing was mailed to Wife that same day and Notice of Hearing and Notice to Creditors was first published on September 2, 1981. On September 21, 1981, Decedent's will was admitted to probate in South Dakota.

On November 23, 1981, Wife filed in South Dakota a Petition for Elective Share of Estate. A hearing was held on this petition and thereat, the Nephews asserted that it should be denied because Wife did not file her election within the time required by SDCL 30-5A-6. The circuit court, however, determined that Wife's right to an elective share was to be governed by Oklahoma statutes, SDCL 30-5A-1; further, because Oklahoma statutes did not require the election to be made within any time period, Wife's Petition for Elective Share of Estate was proper. The circuit court's decision in this regard is contained within an Order Determining Elective Share of Surviving Spouse, filed January 11, 1982. Therein, the circuit court adjudged that Wife had made a valid election to take an elective share and it ordered that upon distribution of the estate in South Dakota, Wife was to receive the share provided by Oklahoma law.

In the following years, various events and maneuvers transpired concerning the Decedent's estates in Oklahoma and South Dakota. In late 1984, several motions and petitions were set for hearing, and on December 14, 1984, the circuit court entertained all such matters. At this hearing, the Nephews objected to the apportionment of federal estate taxes; objected to the awarded attorney fees; and objected to the fees awarded to Executor. Nephews also motioned the circuit court to reconsider the validity of Wife's election to take against the will.

By a Decree of Final Distribution of Estate, from whence Nephews appeal, the circuit court, inter alia, awarded Executor fees in the sum of $5,000; awarded Executor's attorney fees in the sum of $6,240; apportioned federal estate taxes among the Nephews, Wife, and Norman Kummer; distributed to Wife a one-half interest in all of Decedent's South Dakota property; and distributed a 13.31% interest in Decedent's South Dakota personal property to Norman Kummer.

Four issues arise from this appeal and we address them seriatim.

DECISION

I.

IS OKLAHOMA LAW CONTROLLING AS TO WHEN AN ELECTIVE SHARE MUST BE FILED IN SOUTH DAKOTA? OR DOES SOUTH DAKOTA PROCEDURAL LAW APPLY?

Before considering the merits of this issue, we must dispose of Wife's contention that the Nephews are precluded from attacking the elective share awarded in the Decree of Final Distribution of Estate because they failed to appeal the January 1982 Order Determining Elective Share of Surviving Spouse.

SDCL 15-26A-3 enumerates the judgments and orders from which an appeal may be taken. SDCL 15-26A-6 provides the time limitations in which such appeals must be prosecuted. If an appeal is not timely filed, this Court has no jurisdiction to consider it. Weins v. Weins, 70 S.D. 620, 621-22, 20 N.W.2d 228, 228-29 (1945). We determine, however, that the Order Determining Elective Share of Surviving Spouse is not within the purview of SDCL 15-26A-3.

First, because the Order did not finally dispose of the entire proceedings subject only to appeal to this Court, In re Schneider's Estate, 71 S.D. 618, 622, 28 N.W.2d 567, 568 (1947), it is not a judgment within SDCL 15-26A-3(1). See also, SDCL 15-6-54(a). Second, the Order does not determine the action and prevent a judgment from which an appeal might be taken. Thus, it is not within SDCL 15-26A-3(2). Third, the Order is not a final order within SDCL 15-26A-3(4), because it is the final decree of distribution which is conclusive as to the rights of the heirs and imposes finality on the circuit court's determination. See SDCL 30-23-38; Miller v. Thode, 372 N.W.2d 459, 462 (S.D.1985); and Black v. Unknown Creditors, 83 S.D. 119, 122, 155 N.W.2d 784, 786 (1968). Therefore, the Nephews are properly before the Court to attack the Decree of Final Distribution of Estate.

Turning now to the merits of this issue, SDCL 30-5A-1 provides:

If a married person domiciled in this state dies, the circuit court shall have jurisdiction to award an elective share of the augmented estate under the limitations and conditions stated in this chapter. If a married person not domiciled in this state dies, the right, if any, of the surviving spouse to take an elective share in property in this state is governed by the law of the decedent's domicile at death. (Emphasis supplied.)

Based on the last sentence of this statute, and the fact that Okla.Stat.Ann.Title 84, Sec. 44 (West 1970), did not provide a time limitation for filing an elective share, the circuit court concluded that Wife's Petition for Elective Share of Estate was properly filed. We determine, however, that the circuit court's conclusion was erroneous.

SDCL 30-5A-1 provides that it is "the right, if any," of a surviving spouse to elect against a non-domiciliary decedent's will, which is to be determined by the law of the decedent's domicile. SDCL 30-5A-1 does not provide that it is the right to so elect, and the procedures for so electing, which are to be governed by the law of the decedent's domicile. We interpret SDCL 30-5A-1 to require our circuit courts to follow the law of the decedent's domicile which determines the right, nature, and extent of the share which may be elected, and not to require our courts to follow the procedural niceties, or the lack thereof, embodied within the law of the decedent's domicile. South Dakota law therefore would regulate how and when an elective share is to be filed concerning a non-domiciliary's South Dakota property. Thus, in the present case, since Wife failed to comply with the time limitations for filing an elective share under SDCL 30-5A-6, * her Petition for Elective Share of Estate should have been denied. We note that several cases have held that failure to comply with local procedural requirements abrogates the non-domiciliary spouse's ability to take an elective share. See Rannels v. Rowe, 92 C.C.A. 177, 166 F. 425 (8th Cir.1908); Apperson v. Bolton, 29 Ark. 418 (1874); Succession of Martin, 147 So.2d 53 (La.App.1962), cert. denied, 243 La. 1003, 149 So.2d 763 (1963); Bish v. Bish, 181 Md. 621, 31 A.2d 348 (1943); Lee's Summit Bldg. & Loan Ass'n v. Cross, 345 Mo. 501, 134 S.W.2d 19 (1939); In re Tamburri's Will, 198 Misc. 809, 100 N.Y.S.2d 647 (1950); Coble v. Coble, 227 N.C. 547, 42 S.E.2d 898 (1947); McGinness v. Chambers, 3 Smith 404, 156 Tenn. 404, 1 S.W.2d 1015, 82 A.L.R. 1492 (1928); and Matter of Estate of Miller, 541 P.2d 28 (Wyo.1975). As the circuit court erroneously awarded Wife an elective share of Decedent's South Dakota property, we reverse the final decree in this regard.

The resolution of this first issue makes it unnecessary for us to address the Nephew's contention concerning the valuation of the elective share under Oklahoma law. Additionally, the resolution of this first issue also makes it unnecessary for us to address the issue concerning apportionment of federal estate taxes. Since Wife failed to file an election in South Dakota within the time limitations of SDCL 30-5A-6, she was not entitled to an elective share of Decedent's South Dakota property. Thus, those who receive the South Dakota...

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