In Re Havesgaard’s Estate
| Decision Date | 05 October 1931 |
| Docket Number | 6681 |
| Parties | IN RE THE ESTATE OF GURI HAVESGAARD, DECEASED. NELLIE HENDRICKSON, Plaintiff, v. B.A. BENSON, et al, Defendants. Martha J. Alrick, et al, Appellants, v. Norwegian Lutheran Church of America, et al, Respondents. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Brookings County, SD
#6681—Affirmed
Hall & Purdy, Brookings, SD
Attorneys for Appellants.
Cheever, Collins & Cheever, Brookings, SD
L. O. Rue, Minneapolis, MN
Attorneys for Respondents.
Opinion Filed Oct 5, 1931
RUDOLPH J.
This is a proceeding to determine the rights of certain of the devisees of real property under the terms of a will. The only part of the will that is involved is paragraph 4. This paragraph reads as follows:
“I give, devise and bequeath all the real estate which I own or die seized of, to the following named persons, and in the following proportions, to-wit: To Martha J. Alrick, the undivided two-sixths thereof; to Louis J. Alrick, Bertha Alrick, Ida Alrick and Thea Alrick Paul, each an undivided one-sixth thereof.
It is conceded that the defendant the Norwegian Lutheran Church is a legal entity capable of taking property real and personal by gift, devise, or purchase.
The county court by its decree of final distribution decreed that the first part of paragraph 4, as above set out, “constitutes a complete and absolute devise of all the real property of which the testatrix died seized or possessed to the devisees therein named in the proportions therein stated,” and that the remaining portion of said paragraph is “null and void and contrary to the provisions of the statutes of this state prohibiting perpetuities and in violation of the statutes of this state concerning trusts, and that the same is indefinite and uncertain especially insofar as the beneficiaries of the perpetual trust thereby sought to be created are concerned; that the Norwegian Lutheran Church of America did not thereby acquire any interest in or to said real estate in remainder, in trust, or otherwise.” From this decree the church appealed to the circuit court of Brookings county.
The circuit court made finding of fact and conclusion of law to the effect that the church is the owner in fee of the said real estate subject to the life estates of the five Alricks and subject to be divested of such title in fee by the birth of issue to either of said named parties, in which case the said life estate of the party having such issue should at once ripen into title in fee. Decree was entered accordingly, and from such decree and from an order denying a new trial the Alricks appeal to this court.
Section 643, Revised Code of 1919 of South Dakota, provides as follows:
The first question that arises, then, is, What was the intention of the testator when the above-quoted paragraph of the will was executed? From a reading of this paragraph it seems apparent that the testatrix intended to give to those named in the first sentence of the paragraph a life estate which might be increased to a fee upon birth of issue. To the church, we believe, she intended to give the remainder in fee, subject to being divested upon the birth of issue to those named.
The appellants contend that the first sentence of paragraph 4 is an absolute devise, and that the portion of the paragraph following is void because of its repugnance to such absolute devise. With this contention we cannot agree. The cases cited by appellant are cases wherein the instrument under consideration in devising the property contained such words as “to be hers absolutely,” “to his wife and her heirs forever,” and involve provisions where the first taker is given the power of disposition and an attempt is made to bequeath or devise what may be left or undisposed of upon the death of the first taker.
In the first sentence of paragraph 4 there is no absolute devise nor anything inconsistent with the limitations provided in the next succeeding paragraph, wherein the estate devised is limited to a life estate, subject to be increased to a fee upon the happening of a certain contingency. That contingency is: “But the fee title to said real estate shall not pass to any of said persons unless they shall have issue.” In the event any of the persons named die without issue, there is the provision that the share of that person is “hereby devised absolutely and in fee to the Norwegian Lutheran Church of America to be used in support and maintenance of Foreign Missions of said Church.” It will be noted that, in the two clauses of the will last above quoted, it is specifically provided: First, that the fee title is not to go to the persons named “unless they shall have issue”; Second, there is the devise to the church “absolutely and in fee,” subject only to the birth of issue to the persons named. That the intention of the testator was to give to the Alricks a life estate with remainder in fee to the church, which remainder was subject to be divested by the birth of issue to the Alricks, and the fee thereupon to immediately vest in the one to whom such issue was born, we believe, is the proper conclusion to be reached from the wording of the will.
The appellants next contend “that the remainder to the...
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