In Re Finnerud’s Estate
| Decision Date | 17 July 1941 |
| Docket Number | 8428 |
| Citation | 68 S.D. 146,299 N.W. 297 |
| Court | South Dakota Supreme Court |
| Parties | IN RE HANS MARTIN FINNERUD'S ESTATE MIDLAND NATIONAL LIFE INS. CO., Appellant, v. CARL D. JOHNSON, Executor of the estate of Hans Martin Finnerud, deceased, Respondents. |
Appeal from Circuit Court, Codington County, SD
#8428–Affirmed.
C. R. Jorgenson, Watertown, SD
Attorney for Appellant.
McFarland & Paterson, Watertown, SD
Attorney for Respondents.
Opinion filed July 17, 1941
Hans Martin Finnerud died testate in Codington County. Carl D. Johnson, the respondent, was appointed as executor of the Finnerud will. Among other assets of the estate was certain real property in Codington County upon which the appellant, Midland National Life Insurance Company, held mortgages. These mortgages were given to secure two notes signed by the deceased. The appellant filed claims against the estate based upon these two notes representing that the notes were secured by the mortgages heretofore mentioned. The executor disallowed the claims as claims against the general assets of the estate, but allowed these claims as contingent for any deficiency remaining after the foreclosure of the mortgages. The county court, after a hearing upon these contested claims, allowed the claims against the general assets of the estate and ordered payment thereof. An appeal was taken from this order of the county court to the circuit court of Codington County. The circuit court sustained the position of the executor. Judgment was entered accordingly and the claimant has now appealed to this court.
The basis of the trial court’s judgment from which this appeal is taken is to be found in its conclusions of law Nos. 2, 3, and 4, which are, as follows:
“That such claims and each of them are contingent claims only, subject to foreclosure of the mortgages mentioned and any possible deficiency, and that resort may be had to the general assets of the estate of the decedent only for any deficiency which may remain after foreclosure of said mortgages and sale of the mortgaged property.”
“That under the laws of the State of South Dakota the said real estate herein described, subject to mortgages, passed by the will of decedent, and that the said land and real estate is the primary fund and the primary source of payment of these incumbrances and mortgages, and that the mortgagee and claimant cannot resort to the estate of the decedent for the payment of said mortgage indebtedness as it does not appear from the evidence submitted herein that there was an express direction in the will of the decedent that the mortgage should be otherwise paid.”
“That the claims filed by claimant herein, and each of them, are not due but are contingent, and the part thereof which the holder would be entitled to after foreclosure of said mortgages and proof of deficiency, if any, is not determined at this time, and that the said claimants are not entitled to the allowance of or an order directing the payment of said claims in any sum at this time, but that the same are contingent claims as aforesaid only.”
A preliminary motion by respondents asks that certain portions of appellant’s brief be stricken. The appellant in its original brief contended that under the will of the deceased the devisees of the mortgaged property received not only the mortgaged property but also all of the residue of the estate. In other words that, by the terms of the will of the deceased, this property was devised together with other property to three named devisees in equal shares. Respondents contend in their motion to strike that the record does not disclose that this mortgaged property, together with the residue of the estate, was devised to three named devisees in equal shares. For reasons which will hereinafter appear we do not believe that it is material whether the property was specifically devised to a named devisee or whether it went with the residue to three named devisees. We, therefore, accept the question to be determined herein as that question has been stated by appellant in its reply brief, as follows: “Under Section 56.0227, must a mortgagee resort to a foreclosure of his mortgage before he can have recourse to the general assets of the estate where, as in this case, the estate is solvent and where the same persons receive under the will the mortgaged property and also all of the rest and residue of the estate equally, share and share alike?”
In this connection it should be noted that the trial court found that there was no direction in the will of the...
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