Haugen v. Larson, 7412

• Decision Date: 15 October 1932
• Docket Number: 7412
• Citation: 60 S.D. 438,244 N.W. 654
• Parties: HELENA HAUGEN, et al., Petitioners, v. LEWIS LARSON, Judge, Minnehaha County, and James Mee et al., Executors of the last will and testament of Endre J. Vasgaard, Deceased, Respondents.
• Court: South Dakota Supreme Court

60 S.D. 438

244 N.W. 654

HELENA HAUGEN, et al., Petitioners,

v.

LEWIS LARSON, Judge, Minnehaha County, and James Mee et al., Executors of the last will and testament of Endre J. Vasgaard, Deceased, Respondents. South Dakota Supreme Court Original Proceeding #7412—Petition Denied Danforth & Davenport, Sioux Falls, SD Attorneys for Petitioners. Everett A. Bogue, Parker, SD Attorney for Respondent. Opinion Filed Oct 15, 1932 POLLEY, Judge.

This is an original proceeding in this court, wherein the petitioners seek a permanent writ of prohibition, prohibiting the defendants, Lewis Larson, as judge of the county court, Minnehaha County, and James Mee and Robert Peterson, named as executors in the last will and testament of Endre J. Vasgaard, deceased, from further proceedings in any manner in the matter of probating the last will and testament of said decedent. The decedent left surviving him as sole heirs his five children, four daughters and one son, who were also the sole devisees and legatees of the said last will and testament, and all of whom join in this petition. After the death of the said decedent, which occurred some time during the month of January, 1932, the defendants Mee and Peterson filed the said last will and testament in the county court of Minnehaha County, and petitioned for letters testamentary.

The heirs, devisees, and legatees named in the said will, being dissatisfied with the division of the property of the decedent made by the terms thereof, decided to waive the provisions of the said will, and entered into a written contract, designated as a family settlement, which reads as follows: “ ... It is hereby agreed by and between all of the parties to this contract as a family settlement, and by all of the parties interested in distributive shares of said estate either as heirs at law or otherwise, that for mutual consideration and for the purpose of avoiding any controversy or contests in this matter, and for the purpose of protecting and preserving the interest of all of the parties in interest in said estate, that the said purported will so presented by James Mee and Robert Peterson be and the same be set aside and declared not to be the last will and testament of the said Endre J. Vasgaard, and that the property in the estate of said deceased, after the payment of all just debts and funeral expenses, and any expenses incurred in this proceeding prior to the making of this contract, be distributed and divided in accordance with the terms and conditions of the instrument or will of the said Endre J. Vasgaard, deceased, bearing date the 17th day of May, 19,29, and that John Vasgaard be appointed administrator of said estate; that a decree of distribution be entered herein in said proceedings by this court distributing said estate in accordance with the terms and conditions of the will of said Endre J. Vasgaard, made on the 17th day of May, 1929.”

By the terms of this contract they agreed to a division of the said estate different from that provided for in the said will, and thereupon filed a protest in the said county court, protesting against the probate of said will, and against taking any further proceedings of any kind or character in the matter of the probate thereof. The said contract was made a part of the protest, and was considered by the county court upon the hearing of the petition for letters testamentary. The judge of that court appears to have gone into the matter quite thoroughly and reached the conclusion that the law of this state clearly contemplates that all estates of deceased persons must be probated in order to pass clear title to the property, and that there is no other way to determine whether there are claims against the estate, than by probating the will. He stresses the fact that the executors named in the purported will are not parties to the said family settlement, and pursuant to his said conclusion directed the proponents of the will to proceed with the proof thereof. The beneficiaries of the will then instituted this proceeding.

The purpose of a will is to give to the beneficiaries named therein the right, as against all others, to the devise or legacy provided for them by the terms of the will, but does not compel such beneficiaries to accept such legacy or devise under the terms of the will. In this case the only duty to be performed by the executors is to pay the debts or claims, if any, against the estate and distribute the same to the legatees and devisees named in the will according to the provisions thereof. But the debts, if any, have been paid or assumed by the beneficiaries of the will, and such beneficiaries have distributed the estate among themselves in a manner materially different from the distribution made by the terms of the will; in other words, they have waived all the provisions of the will and left no duty whatever to be performed by the executors. The equitable title to the property, subject only to debts of the decedent, passes to the heirs at once on the death of the decedent,...