Lass v. Erickson, 9282

• Decision Date: 25 August 1952
• Docket Number: No. 9282,9282
• Citation: 54 N.W.2d 741,74 S.D. 503
• Parties: LASS et al. v. ERICKSON et al. ERICKSON et al. v. LASS et al.
• Court: South Dakota Supreme Court

Page 741

54 N.W.2d 741

74 S.D. 503

LASS et al. v. ERICKSON et al.

ERICKSON et al. v. LASS et al.

No. 9282.

Supreme Court of South Dakota.

Aug. 25, 1952.

E. G. Jones, Sioux Falls, for appellants.

Danforth & Danforth, Sioux Falls, W. R. Cleland, Vermillion, for respondents.

ROBERTS, Judge.

The record presents an appeal from two judgments, one in favor of defendants in an action brought for the specific performance of a contract to leave property by will in consideration of services rendered, and the other in favor of plaintiff administrator in an action for the recovery of assets.

Selma Erickson died intestate on Cotober 4, 1949, a resident of Clay county, South Dakota. On May 9, 1952, Charles J. Erickson, as surviving husband, filed a petition in county court asking that his brother, F. A. Erickson, be appointed administrator. This petition was granted and the appointee qualified as administrator of the estate.

On April 12, 1950, an action was begun in circuit court by Fred Lass and Belle M. Lass against Charles J. Erickson and the administrator. The complaint alleged that Selma Erickson entered into an oral contract with plaintiffs whereby she agreed that if they would take her into their home and provide her with room, board and companionship until her death she would make a will devising and bequeathing to them all her property; that plaintiffs on their part have fully performed the agreement; and that Selma Erickson died without making the will. The complaint concludes with a prayer that the administrator specifically perform the contract and execute necessary instruments of conveyance. Defendants answered denying that there was such an agreement and alleging that the defendant Charles J. Erickson as surviving husband was entitled to distribution of all the property of the estate, the same being of insufficient vaue to entitle other heirs at law to share therein.

The second action referred to was then commenced by the administrator against Belle M. Lass and The National Bank of South Dakota, Vermillion Branch, to recover funds in the bank represented by certificates of deposit and a checking account. Defendant Belle M. Lass answered claiming that the certificates and all money deposited in the checking account were made payable in part performance of the claimed contract to the order of either Selma Erickson or Belle M. Lass or survivor.

A brother and two nieces of the decedent, as heirs at law, applied to the circuit court for leave to intervene. This the court granted. The court found that no contract existed between the plaintiffs Fred and Belle M. Lass and the decedent to make a will; that Charles J. Erickson is the surviving husband of the decedent; and that interveners have no right, title or interest in the estate, the same being less than $20,000 in value. The intervening defendants alone appeal from the judgment in each action. They claim that the circuit court was without jurisdiction to determine the relationship of Charles J. Erickson to the decedent; that the determination to such an issue was within the exclusive jurisdiction of the county court. They also challenge the finding that decedent was the common law wife of Charles J. Erickson. The actions were consolidated for trial in the circuit court and are here on one record.

A person may make a valid agreement to make a disposition of his property by will. Beveridge v. Bailey, 53 S.D. 98, 382, 220 N.W. 462, 868, 60 A.L.R. 619; Dawson v. Corbett, 71 S.D. 106, 21 N.W.2d 758. It has long been recognized that it is within the jurisdiction of equity to require the equivalent of specific performance of such an agreement after the death of the promisor by requiring transfer of his property in accordance with the terms of the agreement. See Annotations: 69 A.L.R. 26 and 106 A.L.R. 746. The circuit court having general equity jurisdiction (Const. Art. V, Sec. 14) unquestionably had power pending administration of the estate to adjudicate the equitable issues presented with relation to the existence of a contract to make a will. Ewing v. Waddington, 62 S.D. 166, 252 N.W. 28.

Appellants contend that there were separate and distinct matters involved and that notwithstanding the nature of the action the county court had sole jurisdiction to determine who were the heirs and what property they were entitled to as such and that the judgment to that extent is void. This contention is based upon the provisions of the Constitution (Art. V, Sec. 20) vesting in the county court 'original jurisdiction in all matters of probate, guardianship and settlement of estates of deceased persons'. While the county court has original jurisdiction of estates, we have repeatedly held that such jurisdiction is not exclusive. Trotter v. Mutual Reserve Fund Life Ass'n, 9 S.D. 596, 70 N.W. 843, 62 Am.St.Rep. 887; Welsh v. Krause, 38 S.D. 264, 161 N.W. 189; Jacquish v. Deming, 40 S.D. 265, 167 N.W. 157; Song v. Song, 64 S.D. 555, 268 N.W. 905; Howe v. Larson, 68 S.D. 203, 299 N.W. 876; Doling v. Hyde County, 70 S.D. 339, 17 N.W.2d 693; Newton v. Erickson, S.D., 41 N.W.2d 545. An examination of the cases cited will show that even though the subject matter may be involved in probate resort must be had to the circuit court if general equity powers are to be invoked since the county court has only such limited equity powers as are necessary to the exercise of its proper functions. The circuit court having acquired jurisdiction of a subject matter involved in probate for a particular purpose not within the competency of the county court does not...