Hurley v. Devitt (In re Hurley's Estate)

• Decision Date: 24 April 1933
• Docket Number: No. 7395.,7395.
• Citation: 61 S.D. 233,248 N.W. 194
• Parties: In re HURLEY'S ESTATE. HURLEY et al. v. DEVITT et al.
• Court: South Dakota Supreme Court

61 S.D. 233

248 N.W. 194

In re HURLEY'S ESTATE.

HURLEY et al.

v.DEVITT et al.

No. 7395.

Supreme Court of South Dakota.

April 24, 1933.

Appeal from Circuit Court, Lincoln County; Ray E. Dougherty, Judge.

Proceeding between Alfred Hurley and others and Elizabeth Devitt and others for construction of the will of Jeremiah Hurley, deceased. From adverse judgment, and from order denying new trial, Alfred Hurley and others appeal.

Affirmed.

Alan Bogue, of Parker, for appellants.

Conway, Feyder & Conway, of Sioux Falls, for respondents.

CAMPBELL, Judge.

Jeremiah F. Hurley died testate in Lincoln county, S. D., in December, 1915. There survived him his widow, six sons, and three daughters. By his will executed in August, 1915, he admittedly gave his widow a life estate in all his property, real and personal, and undertook to dispose of the remainder to his nine children. The proper construction of the will with reference to the gift over after the life estate is the only question presented by this appeal. The portion of the will material to this question reads as follows:

“To my son, Alfred Hurley, I devise and bequeath three-fifths of the amount of value of my property, real and personal, at the time of distribution to my heirs at law.

“To my son, Thomas Hurley, I devise and bequeath three-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my son, Melvin Hurley, I devise and bequeath three-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my son, Charles Hurley, I devise and bequeath three-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my son, Harry Hurley, I devise and bequeath three-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my son, Arthur Hurley, I devise and bequeath three-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my daughter, Elizabeth Devitt, I devise and bequeath two-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my daughter, Josephine Hurley, I devise and bequeath two-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“To my daughter, Irene Hurley, I devise and bequeath two-fifths of the amount of value of all my property, real and personal, at the time of distribution to my heirs at law.

“And I do hereby further ordain in this my last will and testament, that my said estate shall be divided as hereinbefore mentioned on the basis of three-fifths to my sons and two-fifths to my daughters.”

The daughters maintain that upon a proper construction of this instrument, after the termination of the life estate, two-fifths of Hurley's entire property should be divided equally among his three daughters and three-fifths of his entire property should be divided among his six sons. The sons, on the other hand, contend in the alternative, that upon a proper interpretation of the will Hurley's entire property after the life estate should be divided into twenty-four equal parts, three parts to go to each son and two parts to each daughter; or that the will should be held so indefinite and uncertain that there was an intestacy excepting for the admitted creation of the life estate in the widow.

The will was duly offered and admitted for probate in the county court and a decree was there entered which adopted, in substance, the contention of the daughters and awarded two-fifths of the entire estate to be divided equally among the three daughters and three-fifths of the entire estate to be divided equally among the six sons. The sons appealed to the circuit court where the decision of the county court was affirmed. From this judgment of the circuit court and from the denial of their application for new trial the sons have now appealed to this court.

Appellants, as tending to prove their contention that it was the intention of the testator to give three parts of his whole property to each son and two parts of his whole property to each daughter, were permitted in the court below to introduce testimony to the effect that the sons of testator stayed at home and worked on the farm assisting their father until they were appreciably beyond the age of twenty-one years, whereas the daughters married or left home at earlier ages. From these circumstances appellants urge that it was proper and reasonable to expect that testator might give a somewhat larger portion of his estate to each son than to each daughter. As further proof of such intention on the part of testator, appellants likewise introduced in the court below, over proper objection, the deposition of Nora Hurley, widow of the testator, wherein she recited a statement made to her by the testator immediately after the execution of his will and on the same day. Her testimony in this respect was as follows:

“* * * I had some talk with my husband after he executed the will, the same day he made it, in our own house. * * * After he came from making the will, he came home and says, 'I have made my will, I have left to each of my sons, he says, my boys, three-fifths and to my girls I have left two-fifths, the reason I done that, the boys is the head of the family and supposed to make the living and on the other hand, the boys worked hard to help make this property, therefore, he thought they ought to have an extra share, that's word for word what he said.' * * * He said the boys ought to have an extra share, ought to have a little more than the girls. * * * The only time my husband spoke of the will was...