Ford v. Ford

• Decision Date: 30 December 1922
• Docket Number: 4632,4641.
• Citation: 191 N.W. 457,46 S.D. 182
• Parties: FORD et al. v. FORD et al. [*]
• Court: South Dakota Supreme Court

191 N.W. 457

46 S.D. 182

FORD et al. v. FORD et al. ^[*]

Nos. 4632, 4641.

Supreme Court of South Dakota

December 30, 1922

Appeal from Circuit Court, Faulk County; J. H. Bottum, Judge.

Action by Grace M. Ford and another, substituted for Catherine A Smith, against Lunetta Ford and others. From judgments for plaintiffs, defendants appeal. Reversed.

M. C Lasell and Amos N. Goodman, both of Aberdeen, for appellants.

F. E Snider, of Faulkton, for respondents.

POLLEY J.

This action was brought to quiet title to 320 acres of land in Faulk county. During his lifetime the land had belonged to one John H. Smith. At his death he left a will which contained the following provision:

"I, John H. Smith, of Scatterwood, Faulk county, state of South Dakota, do hereby will all my property to my wife Catherine A. Smith, to have and to hold, and to sell, if necessary for her support all personal and real debts, dues and demands *** if any be left of said property at her death it will go to my heirs and hers. ***"

This will was admitted to probate on the 14th day of February, 1896. The executor named in the will afterwards resigned and the testator's widow, who was the original plaintiff in this action, was appointed administratrix on the 29th day of March, 1899.

The testator and the said Catherine A. Smith had each been married before and each had children by such former marriage. The testator left surviving him several children and some grandchildren. At the time of his death his wife had a married daughter, who is the Lunetta Ford who is named as one of the defendants in this action. At the time the will was probated, and for a number of years thereafter, it was the understanding of the interested parties that, by the terms of the will, testator's widow had a life estate only in the property, with the right to have any part of it sold in case a sale thereof should become necessary to provide means for her support. The widow frequently referred to her interest in the property as a life estate only, and on the 16th day of July, 1902, she petitioned the county court for an order allowing her to sell a certain specified piece of property belonging to the estate under the provisions of the will. The petition was granted, and, pursuant to the order of the court made thereon, such property was sold and the proceeds thereof used by the widow. No further act in the administration of the estate appears to have been performed until the 18th day of October, 1916, when she filed her final account and petition for final distribution as administratrix of the estate. In this petition she claimed to be the sole devisee under the will, and asked that all the real property be assigned and set over to her in fee. On the same day she commenced this action. At that time the heirs of the estate were widely scattered. Several of them resided in Faulk county. Some of them resided in Spink county, some in Edmonds county, and some in Perkins county. Others were scattered over the states of Minnesota, Michigan, and Ohio. Some 30 defendants are named in the summons.

The hearing on the final account and petition was set for October 28, 1916. The order fixing the date of the hearing directed that notice of such hearing be given by posting copies of said order in three of the most public places in the county, to wit:

"One at the outer door of the courthouse in Faulkton, one at the bulletin board at the southeast corner of the Security State Bank Building in Faulkton, and one at the post office in Faulkton, at least ten days before the day of such hearing."

An affidavit was filed showing this direction had been complied with. No appearance was made by any of the heirs, and on the 28th of October, the day named in the said notices, an order of final distribution was made and entered by the county court, whereby all the property belonging to the estate was, "awarded to, and distributed to Catherine A. Smith, to her and her heirs forever." Thereafter she assumed to be the owner in fee of all of said property.

Several of the defendants named in the summons in this action appeared and answered, and on the 8th day of May, 1917, the case was moved for trial. Plaintiff offered, and the trial court admitted in evidence the decree of final distribution that had been entered by the county court, as proof of plaintiff's title in fee to all of said land. The admission of this decree in evidence was objected to on various grounds, among others that it had been entered since the commencement of this action. The court thereupon permitted plaintiff to file a supplemental complaint wherein the said proceedings in the county court and the entry of said decree were pleaded.

The offer of the said decree in evidence was the first actual notice that defendants ever received that such decree had been entered, or that any proceedings had been had in any court to procure such decree. This was long after the time allowed for taking an appeal from said decree had expired, and the trial court held that, by the entry of this decree and the failure to appeal therefrom, the matter of the title to the land involved had become res judicata, and refused to construe the will or to consider any matter pertaining to the title to the property. After the trial of the case, other of the defendants appeared and were allowed to answer, and on or about the 19th day of August, 1919, a second trial was had. The result of this trial was the same as the first.

Judgment on the first trial was entered on the 17th day of December 1917. Motion for new trial was made, and the hearing of same set for the 1st day of July, 1918; but because of the inability of plaintiff's attorney to attend such hearing, it was not had until the 4th day of August, 1919, when the motion was overruled. On the 3d of October, 1919, the defendants named in the first judgment perfected their...