Shure v. Dahl, 7521
| Decision Date | 18 January 1957 |
| Docket Number | No. 7521,7521 |
| Citation | 62 A.L.R.2d 953,80 N.W.2d 825 |
| Parties | W. H. SHURE, as Executor of the Last Will and Testament of John Kittleson, deceased, Petitioner and Respondent, v. Lina L. DAHL, Anna Rendahl, Carl J. Larson, Margaret Hefta, Helen Wener, Doris Nygaard, Elm River Lutheran Church of Galesburg, N. D., Good Samaritan Home of Arthur N. D., Union Hospital of Mayville, N. D., Andrew Anderson and Sarah Anderson, Respondents and Elm River Lutheran Church of Galesburg, N. D., Good Samaritan Home at Arthur, N. D., Union Hospital of Mayville, N. D., Respondents and Appellants. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
Under the provisions of Section 56-0411, NDRC 1943, where a testator enters into an executory contract for the sale of previously devised property, the devisee, upon the death of the testator succeeds to the interest of the testator therein, whatever the legal nature of that interest may be, and is entitled to receive all of the proceeds of such contract which are paid after the testator's death.
Cupler, Tenneson, Serkland & Leahy, Fargo, for appellants Good Samaritan Home at Arthur and Elm River Lutheran Church of Galesburg.
Harvey B. Knudson, Mayville, for appellant Union Hospital of Mayville.
Chas. H. Shure, Fargo, for petitioner-respondent.
On May 10, 1945, John Kittleson of Galesburg executed a last will and testament in which he made specific devises of real property to his sisters, Lina L. Dahl and Anna Randahl, to the Good Samaritan Home at Arthur, to the Elm River Lutheran Church of Galesburg and to the Union Hospital of Mayville. On July 14, 1949, he sold all of the land so devised, by an executory contract for deed. John Kittleson died on June 27, 1952. At the time of his death there remained unpaid unmatured installments upon said contract for deed in the sum of $29,040. The testator's will was filed for probate in the County Court of Cass County. Thereafter the purchasers, under the contract for deed, decided to anticipate the installment payments called for by the contract and paid the entire balance into the County Court. On February 25, 1953, the County Court made its decree directing conveyance of the real estate sold under contract.
Thereafter the petitioner administrator petitioned the County Court to determine, by a declaratory judgment, the persons to whom the proceeds from the sale of the real estate should be distributed. The issue presented was whether the proceeds of sales contract should be distributed to the devisees of the land sold or whether such proceeds should fall to the residuary legatees and devisees. The County Court by judgment decreed that these proceeds be distributed to the devisees of the land sold. The petitioner administrator appealed from the judgment of the County Court to the District Court of Cass County. Upon that appeal the District Court reversed the judgment of the County Court and directed the entry of judgment decreeing that the proceeds of the land sale be distributed to the residuary legatees and devisees. The devisees of the specific tracts of land, other than the sisters of the testator, who are also the residuary legatees and devisees, have appealed from the judgment of the District Court.
The District Court held, as conclusions of law, that the contract for deed made by the testator for the sale of tracts of land, previously devised by his will, revoked those devises and that payments on the contract becoming due and paid after the testator's death should be distributed by the administrator to the residuary legatees and devisees. Appellants specify these conclusions of law as error and assert that such payments should be distributed equitably to the devisees of the several tracts of land sold.
Under the strict rule of the common law such a contract to sell would, without question, have revoked the specific devises. 68 C.J. 844; 95 C.J.S., Wills, Sec. 294. However, many states including North Dakota have enacted statutes designed to modify or ameliorate the strict rule of the common law. Our statute is Section 56-0411, NDRC 1943. This statute first was enacted as Section 710 of the Revised Code of Dakota Territory of 1877, and it appears in every subsequent code or compilation of laws published in this state. It reads as follows:
'An agreement made by a testator for the sale or transfer of property disposed of by a will previously made does not revoke such disposal, but the property passes by the will, subject to the same remedies on the testator's agreement, for specific performance or otherwise, against the devisees or legatees, as might be had against the testator's successors if the same had passed by succession.'
The respondent contends that the application of this statute is limited to cases where the contract of sale of property is one which does not give the vendee a right of possession or where the contract of sale has been breached by the vendee and the property has been recovered.
The argument in support of this contention is founded principally upon the decision of this court in Clapp v. Tower, 11 N.D. 556, 93 N.W. 862. In that case it was held that the making of a contract for deed under which the vendee was granted possession amounted to an equitable conversion of the property by the vendor; that such a contract conveyed the entire equitable title to the vendee; that the vendor retained only the bare legal title as security and that upon his death his interest in the contract passed to his executor as personalty. The argument is that since the real property devised has, by virtue of the contract for deed, ceased to be the property of the testator, the devise of such property cannot be operative and therefore must be considered revoked.
It appears to us, however, that the purpose of the statute was to avoid the results of such strictly technical reasoning and to...
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