Song v. Song

• Decision Date: 21 September 1936
• Docket Number: 7908
• Citation: 268 N.W. 905,64 S.D. 555
• Parties: DELBERT SONG, et al., Respondents, v. HELEN SONG, Individually and as Administratrix of the Estate of Daniel R. Song, Appellant.
• Court: South Dakota Supreme Court

64 S.D. 555

268 N.W. 905

DELBERT SONG, et al., Respondents,

v.

HELEN SONG, Individually and as Administratrix of the Estate of Daniel R. Song, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. Frank R. Fish, Judge #7908—Affirmed Van Slyke & Agor, Aberdeen, SD Attorneys for Appellant. M.C. Lasell, Geo. W. Crane, Aberdeen, SD Attorneys for Respondents. Opinion Filed Sep 21, 1936

WARREN, Judge.

Daniel R. Song died intestate June 25, 1931, leaving surviving him his widow, the appellant Helen Song, and two children by a former marriage. After divorcing his first wife, he remarried on June 9, 1930, living with his second wife a year and some days. His children and his first wife had been living for some time at Oceanside, Cal.

Daniel R. Song was afflicted with an apparently incurable disease. He sought relief at several places, and after returning from a visit to several hospitals, he was admitted to the St. Luke’s Hospital in Aberdeen. On the second night of his stay at the hospital he died. It would appear from the record that a couple of days before his death he handed his wife the keys to the car, the room that they occupied, and the key to the trunk in which was contained their valuables. Among the valuables there was money aggregating $10,000 in currency, a Liberty bond of $500, and some diamonds. It would further appear that his wife, Helen Song, believing that when he turned over the keys to her at the hospital that he was turning over all of his property to her, therefore took charge of the property, paid funeral expenses, and proceeded to manage the property, even to loaning some of the money to relatives of the decedent. It is her contention that the delivery of the key to the trunk and the room, under the circumstances as disclosed by the testimony, constituted a delivery to her of the contents of the trunk, and that it constituted a gift during the lifetime of the deceased. After continuing the management of the property, Helen Song verified a petition for the probate of the estate in March. 1934. One of the respondents, Delbert Song, verified a petition for the probate of said estate, and both of said petitions were heard before the county court. In May, 1934, the county court appointed the surviving widow, Helen Song, as administratrix. She filed her inventory of the property of said estate, which disclosed that it consisted of a Hudson automobile and an undivided one-fifth interest of Daniel R. Song in the equity left in his mother’s estate, valued at $500. A notice to creditors was also published. The trial court found no claims had been filed against the estate. In September, 1935, the county court, upon application, granted the usual widow’s exemptions. It would seem that the widow, as administratrix, having failed to make an inventory of any other or further property, Delbert Song and June Song brought the present action in circuit court for the recovery of the property and also prayed that there be a full and complete disclosure of all the property and that the administratrix be required to deliver up the property to the court, and that the circuit court determine the ownership of the property. From an examination of the defendant’s answer it would appear that she asked that the circuit court declare that Song had made an absolute gift of all moneys owned by him, including the Liberty bond and the diamonds, and that the same constituted a valid gift inter vivos, and that the property was delivered to the defendant during the lifetime of Daniel R. Song, and that she was the absolute owner thereof. The action was tried to the court upon the issues framed by the complaint and the answer, to determine the ownership of the property not accounted for in the county court. The court made findings and conclusions in favor of the plaintiffs to the effect that they were each entitled to a third of the property, and that there had been no gift of the property to the defendant during the lifetime of the decedent. The court made further findings and conclusions allowing all of the payments that the defendant had made for funeral and other expenses, and also certain attorney fees and county court administration fees, and, further, permitted the deduction of the widow’s exemptions. Motion for a new trial was made, which motion for new trial was overruled. The defendant has appealed from the judgment and order denying the motion for new trial.

The appellant by her assignments of error now insists that the circuit court did not have jurisdiction to try and, determine the issues presented to it, and that by taking jurisdiction the circuit court deprived the county court of its original jurisdiction. We will therefore dispose of the jurisdictional question at the beginning of the opinion. As the facts have been recited at considerable length, it will be unnecessary to make a further statement, excepting incidentally, in treating the jurisdictional question. This court in Welsh et al. v. Krause, 190, had occasion to deal with the jurisdiction of the circuit and county courts....