Matter of Estate of Wolff

349 N.W.2d 33, 1984 S.D. LEXIS 303
CourtSouth Dakota Supreme Court
DecidedMay 9, 1984
Docket14182
StatusPublished
Cited by8 cases

This text of 349 N.W.2d 33 (Matter of Estate of Wolff) 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
Matter of Estate of Wolff, 349 N.W.2d 33, 1984 S.D. LEXIS 303 (S.D. 1984).

Opinions

WOLLMAN, Justice.

This is an appeal from a decree of distribution and an order entitled “Decision of the Court” which held that there had been an ademption of certain devises of land in decedent’s will. We affirm-

Jacob Wolff, Sr., (decedent) accumulated approximately 2,800 acres of farm land in Perkins County in South Dakota. When decedent and his wife moved to California in 1950, his three sons, Jacob Jr., Arthur, and Erwinn, remained on the farmland. Jacob Jr., who had been farming 762 acres known as the “home place” with Erwinn, left South Dakota in 1957.

In 1971 decedent executed a will which provided that in the event his wife should predecease him, his estate should pass to his sons “equally, share and share alike.” In 1972, decedent and his wife deeded 1,000.16 acres of the Perkins County land to Arthur for consideration of “one dollar and other good and valuable consideration.” In 1973, decedent and his wife deeded 1,040 acres of the Perkins County land to Erwinn for the same consideration. The tracts of land deeded to Erwinn and Arthur and the remaining 762 acres were of approximately the same value.

Prior to deeding the two tracts of land to Erwinn and Arthur, decedent, who was born to immigrant parents and was not proficient in English, wrote the following to Jacob Jr. in a letter dated September 14, 1972:

I had sent Arthur and Erwinn the Deed for their land. So from now on they did not have to send anymore rent from the land that is Deeded to them and about your land, I don’t know yet. See how it is turning out. Erwinn can buy it or rent for cash, from now on. Or what did you think? I thought if Erwinn buys it I can make the Deed to him. If he rents for cash I make the Deed to you. It is 760 acres of land. All the land on the South side of the road Sec 3 — Sec 4 — Sec 5— Sec 9 — and Sec 10. So he buy it, I deed it to him. If he rent it, he got to rent it for cash. But if you want it to deed it to you, I will do it? Say it the you like it best.

Decedent’s wife died in 1974, and Erwinn moved to California to live with decedent. Arthur’s son, Lynn, then took possession of the home place.

Decedent died in 1980 at the age of eighty-six. His will was admitted to probate in California, and with the exception of the land in Perkins County, South Dakota, decedent’s estate was distributed in equal shares to his three sons pursuant to the California probate decree. The will was later admitted to probate in South Dakota. The circuit court concluded that decedent’s delivery of the warranty deeds to Erwinn and Arthur, when considered in light of decedent’s September 14, 1972, letter to Jacob Jr., constituted an ademption of their share of the South Dakota property-

“Ademption” is the term that describes either the act which makes inoperative a devise or bequest of specific property by the sale or extinction of the property during the testator’s lifetime or, as is applicable to the case at hand, the satisfaction of a devise or bequest by money payment or delivery or conveyance of property to a beneficiary prior to the testator’s death. [35]*35In re Estate of McClow, 205 Neb. 739, 290 N.W.2d 186 (1980). (For an excellent review of the history and development of the doctrine of ademption, see Newbury v. McCammant, 182 N.W.2d 147 (Iowa 1970).)

The statutes regarding ademption are exclusive, and we therefore need not address common law rules and principles. In re Iversen’s Will, 80 S.D. 20, 118 N.W.2d 17 (1962).

Although there is authority that ademption applies only to specific legacies, see, e.g., Samford v. First Alabama Bank of Montgomery, 431 So.2d 146 (Ala.1983); Mills v. Mills, 279 So.2d 917 (Miss.1973), SDCL 29-6-14

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Young
2001 SD 76 (South Dakota Supreme Court, 2001)
Matter of Estate of Jetter
1997 SD 125 (South Dakota Supreme Court, 1997)
Matter of Estate of Swoyer
439 N.W.2d 823 (South Dakota Supreme Court, 1989)
Sioux Valley Hospital Ass'n v. Tripp County
404 N.W.2d 519 (South Dakota Supreme Court, 1987)
Matter of Estate of Wolff
349 N.W.2d 33 (South Dakota Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
349 N.W.2d 33, 1984 S.D. LEXIS 303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-estate-of-wolff-sd-1984.