Higgins v. Higgins

• Decision Date: 10 November 1945
• Docket Number: 8791.
• Parties: HIGGINS et al. v. HIGGINS et al.
• Court: South Dakota Supreme Court

20 N.W.2d 523

71 S.D. 17

HIGGINS et al. v. HIGGINS et al.

No. 8791.

Supreme Court of South Dakota

November 10, 1945

Rehearing Denied Jan. 5, 1946.

H. F. Fellows, of Rapid City, for appellants.

Walter G. Miser, of Rapid City, for respondents.

RUDOLPH Judge.

Plaintiffs brought this action to quiet title to certain real estate. Plaintiffs' claim of title is based upon the will of their deceased grandfather, Marsh Higgins. The will, in so far as here material, provides:

'All the rest and remainder of my estate, both real and personal wheresoever the same may be situate, I give, devise and bequeath to my four (4) grandchildren, viz: Elsie Jean Higgins, Janice Higgins, Joan Higgins and Janelle Higgins share and share alike.

'I hereby appoint my brother J. M. Higgins as Trustee for my said grandchildren; giving him full authority to pay all my just debts and collect all moneys due me or to become due me and to manage my estate for the benefit of my said grandchildren aforesaid. In the event of the death of my brother J. M Higgins, I hereby appoint the First National Bank of the Black Hills, Rapid City, or its qualified agent to act as Trustee for my said grandchildren.

'In the event of the death of any of my grandchildren without issue, his or her share shall be divided equally between the remaining grandchildren, and in the event of the birth of other grandchildren not herein named, the said grandchildren shall become heirs of my estate and share equally with those named herein, in so much of the estate as remains at the time of his or her birth.'

This will was admitted to probate in the county court of Pennington county. On January 16, 1940, the county court made an order of partial distribution as follows: 'It is further ordered, adjudged and decreed that the real and personal property hereinafter described be distributed to, and the executor of said estate is hereby ordered and required to pay and deliver to J. M. Higgins, trustee, of Owanka, South Dakota, and to his successors in trust, in trust nevertheless, to and for the uses and purposes stated in said Will of Marsh Higgins, deceased, that is to say in trust for the said Elsie Jean Higgins, Janice Higgins, Joan Higgins, and Janelle Higgins, the grandchildren of Marsh Higgins, deceased; the said property being distributed to the said trustee and to his successors in trust, to pay the just debts of, to collect all moneys due or to become due to, and to manage the estate of, the said Marsh Higgins, deceased, for the benefit of the said grandchildren, and in the event of the death of any of said grandchildren, without issue, to divide the share of such deceased grandchild equally between the remaining grandchildren, and, in the event of the birth of other grandchildren of the said Marsh Higgins, deceased not hereinbefore named, to give to such other grandchild and equal share with those grandchildren hereinbefore named in so much of the estate as shall remain at the time of his or her birth.'

On December 30, 1940, the county court made a final decree of distribution from which no appeal was taken wherein the remaining estate was distributed to J. M. Higgins, trustee, by language identical to that contained in the decree of partial distribution above set out. It was the contention of the plaintiffs in the trial court and it is their present contention upon appeal to this court, that under the terms of the will of Marsh Higgins, deceased, they are entitled to a holding of the court to the effect that they are the fee owners of the property involved and entitled to its exclusive possession and control free from any alleged trust.

This court has recently held, in conformity with prior decisions, that the county court has the equitable power in the course of the administration of an estate to construe a will so far as such construction might be necessary in order to administer such estate and distribute the same to the parties entitled thereto. Kirby v. Western Surety Co., S.D., 19 N.W.2d 12. It is clear, we believe, that the county court by its decree of distribution has determined that it was the intention of the testator that the legal title to the property should be vested in a trustee, for the benefit not only of grandchildren in being at the time of distribution, but for the benefit also of grandchildren to be born in the future, and the court so distributed the property. In so doing the court was acting within its jurisdiction, under the rule established by this court, and the decree not having been appealed from is not subject to attack, in this respect, in this proceeding.

The difficult question presented is whether the trust as set up by the decree of the county court is a valid trust. We start with the premise that the trust is for the benefit of grandchildren to be born as well as grandchildren in existence at the time the decree was entered. This premise is necessary because the decree which was, of course, entered after the death of the testator distributes the property for the benefit of any grandchildren to be born as well as the named grandchildren. It, therefore, appears that we have a trust created for the benefit of a class, i. e., grandchildren in existence and grandchildren to be born. The members of a definite class of persons can be beneficiaries of a trust. Grandchildren in existence and to be born constitutes a definite class within the meaning of this rule. Scott on Trusts, Section 112.

A further question presented relates to the termination of the trust period. The trial court determined that the trust period terminated upon the death of Maurice Higgins,...