WHITING, J.
One Thora Sjurson died leaving a will, under and by virtue of which she attempted to dispose of certain property located in Day county, S. D., a part of which was a quarter section, known as the “Old Homestead.” She left surviving her four children. One paragraph of her will read as follows: “All my real estate consisting of [here follows description of two quarter sections of land] shall be evenly divided between my four children, except that my son Ole Sjurson shall have the privilege to. buy our old homestead for $25 per acre if he so. desires. * * *” The said will was, on April 20, 1910, by the county court of said Day county, admitted to probate, and letters testamentary issued there[572]*572on. On August 24, 1910, upon a petition that day presented to the county court by Ole Sjurson, setting forth the death of the testate, the fact that she left certain real estate, the above provision of the will, the names and residences of the several children of the deceased, and that “petitioner is desirous of exercising- his option and privilege under the terms of said last will and testament, and hereby declares his intention and desire to buy said real property for the sum of $25 per acre, and that the proceeds' thereof be divided, in lieu of the division of said property, between the children of deceased, of whom petitioner is one,” the said county-court issued an order directing each and every one of said children, other than the .petitioner, to show cause why the prayer of the petitioner should not be granted. Upon the return day a demurrer to the said petition was entered, upon the ground that it did not state facts sufficient to entitle the petitioner to the relief demanded, which demurrer was in all things overruled and a judgment entered, permitting the petitioner to purchase the said quarter section of land in accordance with the terms of said will. From this judgment, an appeal was taken to the circuit court, and in the notice of appeal it was set forth that the particular ground upon -which the appellants relied upon such appeal was that the clause providing “that said Ole Sjurson shall have the privilege to buy oúr old homestead for $25 per acre if he so desires” is void and of no effect. Upon such appeal, the circuit court entered a judgment in all things reversing the judgment of the county court, said circuit court holding that “the facts stated in the petition * * * are * * insufficient to entitle the petitioner to any relief;” and the circuit court ordered -that §uch petition be denied and no relief .granted thereon. It is from this judgment of the circuit court that the present appeal is taken. -
[1] Two questions are raised upon this appeal: Had the county court jurisdiction to construe the terms of this will? If so, was its construction correct?
While we believe it is clear that, under the Constitution and Statutes of this state, an original or independent action or proceeding cannot be brought in the county court to.obtain a construction of the terms of a will, yet it would seem equally clear that there [573]*573is given to such court the equitable power, in the' course of the administration of an estate, to construe a will, so far as such construction may be necessary in order to administer such estate under said will and distribute same to the parties entitled thereto. The county court construes every will when it decrees a distribution thereunder, or when it orders the payment of a debt or legacy from any particular fund. In Woemer’s American Paw of Administration, at page 351, it is said: “The jurisdiction of probate courts over the estates of deceased persons necessarily includes the power, in the first instance, to construe wills, whenever such construction is involved in the settlement and distribution of the estate of a testator.” In the case of Webster v. Seattle Trust Co., 7 Wash. 642, 33 Pac. 970, 35 Pac. 1082, after calling attention to some statutory provisions regarding the powers and duties of the probate court, which provisions are similar to those of our statutes, the court said: “Now, although it is nowhere stated, in terms, that the probate court should have power to construe a will, these portions of the statute compel the conclusion that, in so far as construction may have been necessary to accomplish the ends provided for, the jurisdiction to construe was conferred.” In Glover v. Reid, 80 Mich. 228, 45 N. W. 91, the court said: “But we think the probate court had jurisdiction to construe the will. Such power is necessarily involved in the power to assign the estate of a testator on the settlement of an executor’s account. How. St. §§ 504, S965; Gary, Pro-b. paw, §§ 50, 624. This jurisdiction in the probate court has often been recognized in this state. Paterson v. Stewart, 38 Mich. 402; Kelly v. Reynolds, 39 Mich. 464 [33 Am. Rep. 418] ; Langrick v. Gospel, 48 Mich. 185, 12 N. W. 38.” In the case of Covert v. Sebern, 73 Iowa, 564, 35 N. W. 637, the court said: “Counsel for defendants insist that the probate court had no jurisdiction in the case, for the reason that it is brought for the interpretation of the will, of which the court of chancery has exclusive jurisdiction. The action is brought to require the executor to distribute the property of the estate as provided for by the terms of the will. The statute clearly give au-. thority to the probate court to direct the payment of legacies, and to enforce its order made in that regard. • Code, §§ 2429, 2430, [574]*5742433, 2435. In order to determine the questions presented by plaintiff’s- petition, it was necessary for the probate court to interpret the will. Indeed, no order affecting the rights of the legatees, based upon the will, can be made by the probate court, unless the will be interpreted, so as to discover what these rights are. If the court may require, by order, the executor to- distribute the property, or the money realized, therefrom, to the legatees, the exercise of this power involves the interpretation of the will. Indeed, the authority to interpret the will is possessed by all courts called upon to enforce rights under it. While the court of chancery has jurisdiction of cases brought for the sole purpose of construing or interpreting wills, it is not so far exclusive as to forbid other courts, in which are cases involving rights under wills, to interpret their language. After chancery, in a proper action, has put an interpretation on a will, other courts will follow it as between parties bound by the decree in the action.”
We are of the opinion that the county court had jurisdiction to construe -such will for the purpose of determining whether, under the terms thereof, the land was to be distributed to the four children, or whether the land was to be set over to the petitioner and the $4,000 proceeds therefrom to be distributed among such children.
[2] What is the construction that should be placed upon this will? The first question before the county court, and therefore the first one before the circuit court upon appeal, was, not whether or not the clause of the will in question was valid, but whether the clause was one which, if valid, in any manner controlled or affected the administration and distribution of the estate; and it was only in -case it was found that, if valid, such clause would affect such administration -or distribution of the estate that it would become necessary to pass- upon the validity of such clause. Appellant therefore does not claim that under the will he acquired a right to purchase said land from the respondents.
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WHITING, J.
One Thora Sjurson died leaving a will, under and by virtue of which she attempted to dispose of certain property located in Day county, S. D., a part of which was a quarter section, known as the “Old Homestead.” She left surviving her four children. One paragraph of her will read as follows: “All my real estate consisting of [here follows description of two quarter sections of land] shall be evenly divided between my four children, except that my son Ole Sjurson shall have the privilege to. buy our old homestead for $25 per acre if he so. desires. * * *” The said will was, on April 20, 1910, by the county court of said Day county, admitted to probate, and letters testamentary issued there[572]*572on. On August 24, 1910, upon a petition that day presented to the county court by Ole Sjurson, setting forth the death of the testate, the fact that she left certain real estate, the above provision of the will, the names and residences of the several children of the deceased, and that “petitioner is desirous of exercising- his option and privilege under the terms of said last will and testament, and hereby declares his intention and desire to buy said real property for the sum of $25 per acre, and that the proceeds' thereof be divided, in lieu of the division of said property, between the children of deceased, of whom petitioner is one,” the said county-court issued an order directing each and every one of said children, other than the .petitioner, to show cause why the prayer of the petitioner should not be granted. Upon the return day a demurrer to the said petition was entered, upon the ground that it did not state facts sufficient to entitle the petitioner to the relief demanded, which demurrer was in all things overruled and a judgment entered, permitting the petitioner to purchase the said quarter section of land in accordance with the terms of said will. From this judgment, an appeal was taken to the circuit court, and in the notice of appeal it was set forth that the particular ground upon -which the appellants relied upon such appeal was that the clause providing “that said Ole Sjurson shall have the privilege to buy oúr old homestead for $25 per acre if he so desires” is void and of no effect. Upon such appeal, the circuit court entered a judgment in all things reversing the judgment of the county court, said circuit court holding that “the facts stated in the petition * * * are * * insufficient to entitle the petitioner to any relief;” and the circuit court ordered -that §uch petition be denied and no relief .granted thereon. It is from this judgment of the circuit court that the present appeal is taken. -
[1] Two questions are raised upon this appeal: Had the county court jurisdiction to construe the terms of this will? If so, was its construction correct?
While we believe it is clear that, under the Constitution and Statutes of this state, an original or independent action or proceeding cannot be brought in the county court to.obtain a construction of the terms of a will, yet it would seem equally clear that there [573]*573is given to such court the equitable power, in the' course of the administration of an estate, to construe a will, so far as such construction may be necessary in order to administer such estate under said will and distribute same to the parties entitled thereto. The county court construes every will when it decrees a distribution thereunder, or when it orders the payment of a debt or legacy from any particular fund. In Woemer’s American Paw of Administration, at page 351, it is said: “The jurisdiction of probate courts over the estates of deceased persons necessarily includes the power, in the first instance, to construe wills, whenever such construction is involved in the settlement and distribution of the estate of a testator.” In the case of Webster v. Seattle Trust Co., 7 Wash. 642, 33 Pac. 970, 35 Pac. 1082, after calling attention to some statutory provisions regarding the powers and duties of the probate court, which provisions are similar to those of our statutes, the court said: “Now, although it is nowhere stated, in terms, that the probate court should have power to construe a will, these portions of the statute compel the conclusion that, in so far as construction may have been necessary to accomplish the ends provided for, the jurisdiction to construe was conferred.” In Glover v. Reid, 80 Mich. 228, 45 N. W. 91, the court said: “But we think the probate court had jurisdiction to construe the will. Such power is necessarily involved in the power to assign the estate of a testator on the settlement of an executor’s account. How. St. §§ 504, S965; Gary, Pro-b. paw, §§ 50, 624. This jurisdiction in the probate court has often been recognized in this state. Paterson v. Stewart, 38 Mich. 402; Kelly v. Reynolds, 39 Mich. 464 [33 Am. Rep. 418] ; Langrick v. Gospel, 48 Mich. 185, 12 N. W. 38.” In the case of Covert v. Sebern, 73 Iowa, 564, 35 N. W. 637, the court said: “Counsel for defendants insist that the probate court had no jurisdiction in the case, for the reason that it is brought for the interpretation of the will, of which the court of chancery has exclusive jurisdiction. The action is brought to require the executor to distribute the property of the estate as provided for by the terms of the will. The statute clearly give au-. thority to the probate court to direct the payment of legacies, and to enforce its order made in that regard. • Code, §§ 2429, 2430, [574]*5742433, 2435. In order to determine the questions presented by plaintiff’s- petition, it was necessary for the probate court to interpret the will. Indeed, no order affecting the rights of the legatees, based upon the will, can be made by the probate court, unless the will be interpreted, so as to discover what these rights are. If the court may require, by order, the executor to- distribute the property, or the money realized, therefrom, to the legatees, the exercise of this power involves the interpretation of the will. Indeed, the authority to interpret the will is possessed by all courts called upon to enforce rights under it. While the court of chancery has jurisdiction of cases brought for the sole purpose of construing or interpreting wills, it is not so far exclusive as to forbid other courts, in which are cases involving rights under wills, to interpret their language. After chancery, in a proper action, has put an interpretation on a will, other courts will follow it as between parties bound by the decree in the action.”
We are of the opinion that the county court had jurisdiction to construe -such will for the purpose of determining whether, under the terms thereof, the land was to be distributed to the four children, or whether the land was to be set over to the petitioner and the $4,000 proceeds therefrom to be distributed among such children.
[2] What is the construction that should be placed upon this will? The first question before the county court, and therefore the first one before the circuit court upon appeal, was, not whether or not the clause of the will in question was valid, but whether the clause was one which, if valid, in any manner controlled or affected the administration and distribution of the estate; and it was only in -case it was found that, if valid, such clause would affect such administration -or distribution of the estate that it would become necessary to pass- upon the validity of such clause. Appellant therefore does not claim that under the will he acquired a right to purchase said land from the respondents. Such a claim would be an admission that his right, if there could be a valid grant of such right by will, was one in no manner affecting the distribution of the land, and therefore a right to be established by an action in the circuit court. Neither is there any suggestion in [575]*575the record of any claim by either side that the intent of the testator, as shown by said will, was, so far as the “homestead” was concerned, to direct a sale thereof to the appellant, providing he would pay $25 .per acre for same, with a devise of said “homestead” to the four children, in case appellant declined to purchase same. The sole contention of appellant, and one upon which his appeal must stand or fall, is that, under said will, there was a devise of said “homestead’ to the four children; there being attached to said devise a condition subsequent, under which such devise was subject to be divested by a subsequent act or event, namely, appellant’s election to purchase said land.
Appellant cites and relies upon sections 1061, 1064, and 1068 of the Civil Code, which reads as follows:
“A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed ■by the testator for that purpose.”
“A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated.”
“A condition subsequent is where an estate or interest i? so given as to vest immediately, subject only to be divested by some subsequent act or event.”
Thus the appellant concedes that the will vested in the four devisees a fee-simple estate in this land; but where do we find any apt words expressing an intent to attach to such devise a condition subsequent, upon the happening of which such estate would divest? There is certainly no-direct declaration to that effect, and such an intent can only be found by inferring that the testator must have so intended, because, without such a divestment of the estate that had passed to such devisees, there would be nothing which the county court could order sold to appellant. We do not think a finding of intent to create a condition subsequent should rest upon a mere inference, when the words used are such as can clearly be held to express an intent by the testator to grant to appellant the right to purchase said land from respondents. The mere fact that such a right might amount to. a restriction upon alienation, such as would be void, does not justify us in disregard[576]*576ing the clearly expressed intent of the testator, and, by drawing inferences of what the testator might have intended, attempt to evolve a condition subsequent, where there are no clear words creating same.
The judgment of the circuit court is affirmed.'
McCOY and SMITH, JJ., took no part in this decision.