In Re Sachs' Estate

South Dakota Supreme Court

In Re Sachs' Estate

5 N.W.2d 33, 68 S.D. 605, 1942 S.D. LEXIS 72

CourtSouth Dakota Supreme Court

DecidedAugust 5, 1942

DocketFile No. 8522.

StatusPublished

This text of 5 N.W.2d 33 (In Re Sachs' Estate) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Sachs' Estate, 5 N.W.2d 33, 68 S.D. 605, 1942 S.D. LEXIS 72 (S.D. 1942).

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Opinion

Following the decision of this court in the case of Bogue et al. v. Sachs et al., 68 S.D. 18, 297 N.W. 793, the case was retried below, and upon the retrial the respondents submitted evidence tending to establish the insolvency of the executor, Clarence Sachs. The trial court found that Clarence Sachs was insolvent at all times material to the issue here involved. This finding is supported by the evidence. We clearly intimated in the prior opinion that should it be established that the personal representative is insolvent, then it is within the authority of the court to make an allowance and direct payment of a reasonable attorney fee from the assets of the estate. We now expressly so hold. In view of this holding and this record we are convinced that no question of election of remedies or estoppel by judgment is involved.

The judgment appealed from is affirmed.

All the Judges concur.

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Following the decision of this court in the case of Bogue et al. v. Sachs et al., 68 S.D. 18, 297 N.W. 793, the case was retried below, and upon the retrial the respondents submitted evidence tending to establish the insolvency of the executor, Clarence Sachs. The trial court found that Clarence Sachs was insolvent at all times material to the issue here involved. This finding is supported by the evidence. We clearly intimated in the prior opinion that should it be established that the personal representative is insolvent, then it is within the authority of the court to make an allowance and direct payment of a reasonable attorney fee from the assets of the estate. We now expressly so hold. In view of this holding and this record we are convinced that no question of election of remedies or estoppel by judgment is involved.

The judgment appealed from is affirmed.

All the Judges concur.

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Bluebook (online)

5 N.W.2d 33, 68 S.D. 605, 1942 S.D. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sachs-estate-sd-1942.

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