In re ReQua's Estate

• Decision Date: 22 May 1945
• Docket Number: 8752.
• Citation: 18 N.W.2d 791,70 S.D. 470
• Parties: In re ReQUA'S ESTATE. ARK OF REFUGE REST HOME CORPORATION v. FIRST NAT. BANK & TRUST CO.
• Court: South Dakota Supreme Court

18 N.W.2d 791

70 S.D. 470

In re ReQUA'S ESTATE.

ARK OF REFUGE REST HOME CORPORATION v. FIRST NAT. BANK & TRUST CO.

No. 8752.

Supreme Court of South Dakota

May 22, 1945

John Carl Mundt, of Sioux Falls, for appellant.

Boyce Warren & Fairbank, of Sioux Falls, for respondent.

ROBERTS Judge.

Carrie A Parker died November 29, 1915, and letters testamentary were issued to Nellie T. Parker and W. E. Roney. On December 6 1934, a final decree was entered and so far as here material reads as follows:

'It appears to the Court now here, on satisfactory proofs and the evidence * * * that said Estate has been fully administered as by the final account of Nellie T. Parker, surviving Executrix of said Estate, duly audited and hereby allowed by this Court, pursuant to due notice given and served, will appear, reference being had thereto.

* * *

* * *

'And it further appearing that the said deceased died testate, and the residue of said estate consists of the following described real and personal estate, to-wit:

'Lots Ten (10) to Eighteen (18), Block Four (4) of McClelland's Addition to West Sioux Falls, an Addition to the City of Sioux Falls, South Dakota.

'A guaranty fund certificate dated the 23rd day of August, 1924, in the sum of $819.49, on which dividends have been paid in the amount of 25%, and possibly some other minor personal assets.

'And it further appearing that all the bequests as provided for in the Will of the Deceased have been paid, so far as it was possible to pay the same, and there it was provided in said Will that the residuary estate should be used and expended for the support, maintenance and care of the aged, and the selection to be made by the Executors and Trustees named in said Will, and the Executors and Trustees having turned over the use of the residuary estate to the Ark of Refuge Rest Home Corporation, of Sioux Falls, South Dakota, and being of the opinion that said real estate and any remaining personal estate should by decree of this Court be transferred and vested in said Ark of Refuge Rest Home Corporation, said Corporation being particularly engaged in the work of caring for and supporting the aged, and that by so doing, the terms of said Will will be complied with, and having so made said selection as provided by the terms of said Will.

'And it further appearing that the following named Corporation is entitled to all of said Estate by law, to-wit: Ark of Refuge Rest Home Corporation, of Sioux Falls, South Dakota.

'Now, therefore, on the petition of Nellie T. Parker, and pursuant to due notice and the law in such cases provided.

'It is ordered, adjudged and decreed, and this Court, by virtue of the powers and authority vested in the same by law, does hereby order, adjudge and decree: That all and singular of the above described real and personal property be, and the same is hereby assigned to and vested in the said Ark of Refuge Rest Home Corporation, of Sioux Falls, South Dakota, in the following proportions:

'All of the above described real estate and all of the above described and remaining personal property, whether particularly described herein or not, belonging to said Estate.

'To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining, to the said above named corporation, its successors and assigns forever.'

On March 4, 1942, the Ark of Refuge Rest Home Corporation obtained in county court an order directing the executrix, Nellie T. Parker, to show cause why a further accounting should not be filed. Nellie Parker, a resident of Minnesota, entered a special appearance claiming that the court was without jurisdiction. Judgment of the circuit court affirming the order of the county court dismissing the cause for want of jurisdiction was on appeal to this court affirmed. In re Parker's Estate, 13 N.W.2d 421.

Prior to the grant of letters testamentary, Nellie T. Parker filed a bond with Benson H. ReQua and W. L. Baker as sureties, in the amount of $6,000, conditioned for the faithful performance of her duties as...