In re Engebretson's Estate

• Decision Date: 17 December 1941
• Docket Number: 8487.
• Citation: 1 N.W.2d 351,68 S.D. 255
• Parties: In re ENGEBRETSON'S ESTATE. ENGEBRETSON et al. v. GRAFF
• Court: South Dakota Supreme Court

1 N.W.2d 351

68 S.D. 255

In re ENGEBRETSON'S ESTATE.

ENGEBRETSON et al. v. GRAFF

No. 8487.

Supreme Court of South Dakota

December 17, 1941

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

Danforth & Danforth, of Sioux Falls, for respondent.

ROBERTS Judge.

This proceeding was instituted in the county court of Minnehaha County by Martin Engebretson, an heir of Lars Engebretson deceased, by the filing of a petition seeking an allowance out of decedent's estate for services rendered by attorneys employed by him and other beneficiaries of the estate. The claim was denied by the county court and the order of the circuit court dismissing the appeal from the county court is before us for review.

It appears from the record that respondent, as administrator of the estate of Lars Engebretson, deceased, commenced an action in the circuit court of Minnehaha County against C. L Engebretson, seeking recovery of a judgment for a deficiency resulting from the foreclosure by advertisement in Minnesota of a real estate mortgage. Defendant filed an answer denying liability and a counterclaim alleging that his distributive share in the estate had been withheld by the administrator. Based on a stipulation of the parties judgment was rendered for defendant dismissing the complaint and awarding recovery on the counterclaim. Thereafter counsel employed by appellants herein to represent them made application to have the judgment set aside and to intervene in the action. The circuit court entered an order setting aside the judgment and permitting intervention and the action of the trial court was sustained on appeal. Graff v Engebretson, 66 S.D. 45, 278 N.W. 28;Id., 66 S.D. 351, 283 N.W. 161.

The petition filed by the appellants in the county court alleges that at the conclusion of the trial in the circuit court judgment was rendered on the motion of the attorneys for appellants who were intervenors in that action in favor of the administrator and against C. L. Engebretson for $4954.50; that the services of counsel employed by appellants were beneficial to the estate; and that the reasonable value thereof should be determined and paid out of the estate. Objections to the granting of the petition were filed by the administrator and three of the heirs. The county court as we have stated disallowed the claim. The circuit court sustained a motion to dismiss the appeal from the county court on the grounds that the order disallowing the claim was not appealable and that an allowance may not be made out of a decedent's estate for the services of attorneys not employed by the personal representative.

SDC 35.2101 authorizes an appeal to the circuit court from a judgment, decree, or order of the county court, (1) granting, refusing, or revoking letters testamentary or of administration or of guardianship, (2) admitting or refusing to admit a will to probate, (3) against or in favor of the validity of a will or revoking the probate thereof, (4) against or in favor of setting apart property or making an allowance for a widow or child, (5) against or in favor of directing the partition, sale, or conveyance of real property, (6) settling an account of an executor, administrator, or guardian, (7) refusing, allowing, or directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, claim, legacy, or distributive share, (8) allowing or rejecting a claim on a hearing of contested claims, or from (9) any other judgment, decree, or order of the county court, or of the judge thereof, affecting a substantial right in probate matters. Subdivision 8 provides for appeals from contested claims, but this has reference to claims against the decedent as contradistinguished from claims against the estate. See Kline et al. v. Gingery, 25 S.D. 16, 124 N.W. 958; Hirning v. Kurle, 54 S.D. 334, 223 N.W. 212. It is quite obvious that if the order disallowing the claim of the appellants was appealable under the provisions of this statute, it was by reason of subdivision 9 as being an order affecting a substantial right. Respondent urges that the order of the county court was in any event a discretionary order and for that reason not appealable. The term "substantial right" as used in this statute is that which concerns the subject matter of the proceeding and not a mere matter of practice, and the fact that a matter is discretionary does not prevent it from being a matter affecting a substantial right. 4 C.J.S., Appeal & Error, § 100; see, also, In re Taylor's Estate, 54 S.D. 153, 222 N.W. 686. We think the order of the county court beyond question affected a substantial right and was appealable.

The question then presented is whether or not there was error in dismissing the appeal from the county court upon the ground that no allowance may be made out of an estate for the...