Ward v. Dupree

• Decision Date: 07 April 1903
• Parties: ESTELLE WARD, Plaintiff and respondent, v. EDWARD DUPREE et al., Defendants and appellants.
• Court: South Dakota Supreme Court

16 S.D. 500

94 N.W. 397

ESTELLE WARD, Plaintiff and respondent,

v.

EDWARD DUPREE et al., Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Stanley County, SD Hon. Loring E. Gaffy, Judge Affirmed M. G. Sinnon, John A. Holmes Attorneys for appellants. J. K. Breeden and John F. Hughes Attorneys for respondent. Opinion filed April 7, 1903

CORSON, J.

In June, 1898, one Frederick DuPree, a resident of Stanley county, died, leaving surviving him a widow and nine children, one of whom is the plaintiff in this action, and also leaving a last will and testament, which was duly admitted to probate by the county court of said Stanley county. In his will the deceased bequeathed to his wife and to each of his children a one-tenth interest in his estate, and appointed Douglas F. Carlin executor of same. The estate of the deceased consisted mainly of money deposited in bank and a herd of cattle, on August 15, 1898, there was a meeting of the legatees called by one or more of the defendants for the ostensible purpose of signing papers required in making a division of money deposited in the bank, on the 12th day of November following, the defendants, or some of them, caused to be filed and recorded in the office of the clerk of the county court of said Stanley county an instrument purporting to be executed by the plaintiff herein and her sister Maggie Fisherman, relinquishing all the right, title, and interest of the plaintiff and her sister in and to the estate of the said Frederick DuPree, deceased, to Peter DuPree, Davis DuPree, Edward DuPree, Frederick DuPree, Hermine DuPree, Josephine Vollin, and Marcella Carlin, except that the plaintiff and her sister were each to be paid $2,000 in cash within 60 days from the date of the said instrument. It is alleged in the complaint that this instrument was forged, and was never in fact signed by either the plaintiff or her sister Maggie Fisherman, or, if signed by them, their signatures were procured by fraud. It is further alleged that the plaintiff and her sister had signed an instrument purporting to be for the purpose of dividing the money in the bank belonging to the estate and that the same was signed for no other purpose. It is further alleged that the said purported relinquishment was wholly without consideration and null and void; that the consideration of $2,000 mentioned in the said relinquishment was plaintiff’s money absolutely, left by her father, Frederick DuPree, by his last will and testament, and was paid to her as her share of the $20,000 in the bank belonging to the said estate. The plaintiff further alleges that the executor of the said estate, while knowing said ‘purported relinquishment to be false and forged, procured an order of the said county court of Stanley county to distribute’ the sum of $4,000 belonging to the estate, and which was distributed, leaving this plaintiff out, and not distributing to her her share of the said $4,000 as provided by said will. It is further alleged that the said executor, while knowing said instrument to be false and forged, did for the purpose of defrauding this plaintiff out of her interest in her father’s estate, procure an order from the said county court to distribute, and did distribute, about 856 head of cattle belonging to the said estate, and worth about $24,000, among the defendants, leaving out in said distribution this plaintiff. It is further alleged that the plaintiff had no knowledge of the said purported relinquishment until in July, 1900. The plaintiff prays that an injunction issue out of the said court, enjoining the said executor from distributing any more money or property of any nature or kind, or from making final settlement of the said estate until the final hearing and disposition of the said case, and that the judge of said Stanley County be restrained from issuing any order to the said executor, authorizing him to pay out or distribute any more money or property of any kind belonging to the said estate, and from making any final order or settlement therein, and that the court adjudge the said purported relinquishment null and void, and cancel the same and the record thereof, and that the plaintiff be adjudged to be entitled to a one-tenth interest in and to the said estate of Frederick DuPree, deceased, as provided in his last will and testament. To the complaint the defendants interposed a demurrer upon the following grounds:

“It appears upon the face of the said complaint that the court had no jurisdiction of the subject of the action, and also that the said complaint does not state facts sufficient to constitute a cause of action.”

This demurrer was overruled and the defendants given 15 days to answer and subsequently an answer was duly filed. Upon the case being called for trial, the death of two of the defendants was suggested by the attorneys for the defendants, and that no administrator had been appointed for either of them, and they moved the court to continue the case until the next term of the said court. This motion was denied, and the defendants excepted to this ruling. Thereupon the court called a jury, and, submitted to them two questions:

“(1) Did plaintiff, Estelle Ward, sign Exhibit No. 5?

Answer. Yes.

(2) If you find that Estelle Ward did sign Exhibit No. 5, was such signature procured by fraud?

Answer. Yes.”

The court made other findings in the case, and stated its conclusions of law, and entered judgment in favor of the plaintiff, and from this judgment and order denying a new trial the defendants appeal.

The principal error assigned, discussed by counsel, is that the court erred in overruling defendants’ demurrer to the complaint.

It is contended by the defendants that the county court of Stanley county had exclusive original jurisdiction of the subject matter in controversy in this action, and that under the laws of this state the county court is clothed with ample and sufficient judicial power to hear and fully determine all the issues in any manner connected with the complete and final settlement of the estates of deceased persons. It is insisted on the part of the plaintiff that the question in this case is not one as to administration of the estate, but is a question as to whether or not the purported release is a good and valid transfer of the interest of the plaintiff in and to her interest in the estate of Frederick DuPree, deceased. It will be noticed that the plaintiff claims that this purported relinquishment was a forgery, or obtained from her by fraud, and is a nullity. It would seem from the...