Kappenmann's Estate, In re, No. 10206
| Court | Supreme Court of South Dakota |
| Writing for the Court | RENTTO |
| Citation | 141 N.W.2d 780,82 S.D. 91 |
| Parties | In the Matter of the ESTATE of George A. KAPPENMANN, Deceased. |
| Decision Date | 26 April 1966 |
| Docket Number | No. 10206 |
Page 780
Deceased.
Rehearing Denied May 31, 1966.
[82 S.D. 93] Roubideaux, Poches & Reade, Charles Poches, Jr., Fort Pierre, for executor-appellant.
Ronayne, Richards & Dobberpuhl, Mike Ronayne, Aberdeen, for Robert Kappenmann, respondent.
RENTTO, Presiding Judge.
When this controversy was before the circuit court on appeal from the county court the judge of that court wrote: 'The question presented by this appeal is wehther an executor may sell specifically devised real property, under a power of sale in a will, where such sale is not necessary to pay debts and cost of administration, and where there is no directive in the will to sell such devised property.' His answer was no. The same question is presented on this appeal from his decision, but our answer is yes.
The decedent, George A. Kappenmann, died on September 9, 1963. By his will dated April 19, 1963 and admitted to probate on October 7, 1963, the testator disposed of all of his property. He specifically devised to each of eight of his children described 80 acre tracts of land. One of these went to a son, Robert Kappenmann. Wilfred Kappenmann, a son and also the devisee of an 80 acre tract, was appointed executor in the will and later qualified as such and is now so acting. While other devises and bequests are made by the will we feel that a discussion of them is not here necessary.
In paragraph XV the will provided as follows:
'I authorize and empower my personal representative, hereinafter named, if and whenever in the settlement of my estate he shall deem it advisable, to sell at private or public sale at such price as he shall think fit, [82 S.D. 94] the whole or any part of my real and personal estate, and to execute good and sufficient deeds and other instruments necessary or property to convey and transfer the same to the purchaser, who shall not be bound to see to the application of the purchase money, and I further authorize and direct that it will not be necessary for such personal representative to have approval or will it be necessary to apply to any
Page 780
Court for power so to do, and that it will not be necessary in the sale of any such property that my personal representative need give notice to any person or persons whomsoever of intention to sell such property or of notice of sale of such property.'Pursuant to this authority and without an order of the court, the executor sold at private sale for $28,000 cash all of the specifically devised 80 acre areas as one tract, except the 80 devised to him, subject to confirmation by the court. The land sold had been appraised at $50 per acre. On the date of decedent's funeral seven of the eight devisees of these 80 acre tracts, including Robert Kappenmann, agreed that these tracts be sold as a whole, except the 80 given to the executor. It adjoins other land that he owns and farms and can be utilized advantageously in connection therewith.
The executor made a return of this sale to the county court and asked that it be confirmed. Robert Kappenmann filed objections thereto insofar as the sale of his 80 acres was concerned. He claimed that it was not necessary to sell this property because there was adequate money on hand to pay all the charges against the estate. He further asserted that the 80 given to him was his property and that he should be permitted to dispose of it as he saw fit and that he had an opportunity to sell it at a price in excess of that obtained for it on the sale by the executor. After hearing the county court confirmed the sale and ordered that the property sold be conveyed to the purchaser. From this order the objector appealed to the circuit court.
On such appeal it was stipulated that there was adequate money on hand to pay all debts, funeral expenses, expenses of administration, and other proper charges against the estate, [82 S.D. 95] without resorting to the sale of any real estate; that the purchaser at the sale is a responsible bidder, ready and willing to pay the full purchase price; and...
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In re Estate of Olson, No. 24127.
...Revised Codes 1877, re-codified as SDCL 30-22-1, repealed by 1995 S.D. Laws ch. 167, § 168. In the case of In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 780 (1966), this Court upheld a sale of real estate by an executor solely because such authority had been granted in the decedent's w......
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Estate of Lingscheit, Matter of, No. 15049
...the devisees, subject to the control of the circuit court and the possession of Executor during administration. In re Estate of Kappenmann, 82 S.D. 91, 97, 141 N.W.2d 780, 783 (1966). Thus, it is generally held that the devisees are entitled to the rent, income, and profits of the property ......
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Bollinger v. Eldredge, No. 18344
...devisee subject to control of the county court and possession of executor during administration of the estate. In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 780 (1966). "Upon the death of the testator and even before the probate of the will, the general rule is that title to realty ves......
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Smith v. Dolan, No. 10967--
...This view must be considered and reconciled with our views of title vesting under SDCL 29--5--27 and see In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 6 It originated at § 598 of the 1865 Report of the Committee appointed to prepare a civil code for the State of New York, commonly refe......
-
In re Estate of Olson, No. 24127.
...Revised Codes 1877, re-codified as SDCL 30-22-1, repealed by 1995 S.D. Laws ch. 167, § 168. In the case of In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 780 (1966), this Court upheld a sale of real estate by an executor solely because such authority had been granted in the decedent's w......
-
Estate of Lingscheit, Matter of, No. 15049
...the devisees, subject to the control of the circuit court and the possession of Executor during administration. In re Estate of Kappenmann, 82 S.D. 91, 97, 141 N.W.2d 780, 783 (1966). Thus, it is generally held that the devisees are entitled to the rent, income, and profits of the property ......
-
Bollinger v. Eldredge, No. 18344
...devisee subject to control of the county court and possession of executor during administration of the estate. In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 780 (1966). "Upon the death of the testator and even before the probate of the will, the general rule is that title to realty ves......
-
Smith v. Dolan, No. 10967--
...This view must be considered and reconciled with our views of title vesting under SDCL 29--5--27 and see In re Estate of Kappenmann, 82 S.D. 91, 141 N.W.2d 6 It originated at § 598 of the 1865 Report of the Committee appointed to prepare a civil code for the State of New York, commonly refe......