In re Engebretson's Estate

• Decision Date: 17 January 1944
• Docket Number: 8658.
• Citation: 12 N.W.2d 761,69 S.D. 549
• Parties: In re ENGEBRETSON'S ESTATE. ENGEBRETSON et al. v. GRAFF et al.
• Court: South Dakota Supreme Court

12 N.W.2d 761

69 S.D. 549

In re ENGEBRETSON'S ESTATE.

ENGEBRETSON et al. v. GRAFF et al.

No. 8658.

Supreme Court of South Dakota

January 17, 1944

Danforth & Danforth, of Sioux Falls, for appellants.

James O. Berdahl and B. O. Stordahl, both of Sioux Falls, for respondents.

RUDOLPH Judge.

This case was before the court on a prior appeal. In re Engebretson's Estate, S.D., 1 N.W.2d 351, 142 A.L.R. 1454. Following the decision of this court in the former appeal the controversy was tried on its merits before the circuit court. The circuit court awarded the petitioners an attorney fee of $1,000 from which award this appeal has been taken.

It was held on the prior appeal that an allowance may be made out of an estate of a deceased person for services of attorneys for beneficiaries where those services are distinctly beneficial to the estate and became necessary either by reason of laches, negligence or fraud of the legal representative of the estate. Appellants' present contentions are that the services for which the allowance was made were not beneficial to the estate nor were they necessary by reason of laches negligence or fraud of the executor.

Appellants first argue that the services of petitioners related only to a dispute among the heirs and that these services did not inure to the benefit of the estate. The facts disclose that C. L. Engebretson, one of the heirs of the estate, had purchased from the deceased during his lifetime, certain real property and to secure the purchase price had given a mortgage upon the property to the deceased. Following the death of the mortgagee this mortgage was foreclosed and a deficiency resulted. For a number of years thereafter, the distributive share of C. L. Engebretson in this estate, was withheld by the county court to apply upon this deficiency. C. L. objected from time to time to the withholding of this distributive share and finally in 1936 appealed from an order of the county court withholding his share, to the Circuit Court of Minnehaha County and the matter was heard before Hon. Lucius J. Wall, one of the judges of the Second Judicial Circuit, sitting at Sioux Falls. While this appeal was pending and before a decision by Judge Wall, the administrator of the estate commenced an action against C. L. Engebretson for the purpose of recovering or reducing to judgment this deficiency resulting from the mortgage foreclosure. In this action C. L Engebretson denied liability and filed a counterclaim wherein he sought to recover his share of the estate which had been withheld by the county court to apply upon this deficiency amounting to $1,913.82. The administrator made no reply to this counterclaim. Counsel representing the administrator and counsel representing C. L. Engebretson agreed to hear this case before Hon. L. L. Fleeger at Parker and the case was there heard. The trial before Judge Fleeger at Parker was informal, such evidence as was submitted was entirely by stipulation which the trial court found was misleading to the trial judge, and it clearly appears from the record that no real contest of the claims of C. L Engebretson was presented to Judge Fleeger. No reply to the counterclaim had been filed and as a result of this informal proceeding before Judge Fleeger, a judgment was entered dismissing the administrator's claim for the deficiency and sustaining C. L. Engebretson's claim of $1,913.82 against the estate. All of these proceedings before Judge Fleeger were unknown to the heirs who had been asserting the validity of the claim for deficiency against C. L. Engebretson. Shortly following the entry of the judgment in favor of C. L. Engebretson, the administrator paid to Mr. Engebretson the amount thereof. The appeal before Judge Wall was dismissed. When the other heirs were advised of the proceedings before Judge Fleeger, they immediately employed petitioners who, through proper proceedings before Judge Fleeger, were successful in having the judgment in favor of C. L. Engebretson set aside and an order entered permitting the intervention of the interested heirs in this litigation. The administrator appealed from this order to this court where the order of Judge Fleeger setting aside the judgment and permitting the intervention was sustained. Graff v. Engebretson, 66 S.D. 45, 278 N.W. 28; Graff v. Engebretson, 66 S.D. 351, 283 N.W. 161. There...