
    IN RE ESTATE OR BENJAMIN PREROST, Deceased. DeCAMP, Appellant, v. PREROST, Respondent.
    (168 N. W. 630).
    (File No. 4305.
    Opinion filed July 22, 1918.)
    1. Wills — Bequest of Personalty, Devisee Claiming Independently of . Will- — Sufficiency o>f Evidence — Jurisdiction.
    Where, upon trial in circuit court, upon appeal from final decree of distribution in county court, the circuit court, after having made conclusion of law that it had not jurisdiction to grant relief prayed for by a residuary legitee under the will of .decedent, who claimed personalty adversely to one- named as devisee thereof, proceeded to and did adjudicate that said devisee owned such personalty independently of the wili and as belonging to him at time of testator’s death, held, that such finding of ownership was erroneous; the only thing before- the court upon that issue being a stipulation' that one party claimed and the other party disputed such claim, and an oral agreement in open court that evidence could he- introduced regarding said issue if trial,court found it necessary to decide- that question.
    2. Appeals — Error—Un-appealed From Portion of Judgment, Assignment of Error re, Effect.
    An assignment of error involving a claim embraced in that part- of tlie judgment below, not appealed from, is without basis in the appeal record.
    3.- Executors and Administrators — Wills, Election to- Take Independa ; ently of — Jurisdiction of County, Circuit,. Court, to Determiné —Whether Cognizable in Equity — Constitution;—Ward v. Dupree 16 S. D. 500, Explained.
    
      The county court in probate, and the circuit court- on appeal from a decree of final distribution; possesses jurisdiction to determine the question of election to take other than under a bequest in a "will; construing Const.; Art. 5, >Sec. 20, providing that county courts shall have jurisdiction in all matters of probate, * * * and settlement of decedents’ estates; and such courts have equitable jurisdiction necessary-, to exercise of their proper functions.; and the. determination by the county .court of the question of the right of one claiming, adversely to a devisee of personalty who had elected to take independently of the will, and who claimed to be owner of the property at time of decedent’s death, was within the proper functions of that court. Ward v. Dupree, 16 S. D. 500, 94 N.' W. 397, explained. . ’
    4. Courts — County Court in Probate — Relative Rights Under Will and by Succession, Versus Adverse Interest, Jurisdiction to Determine.
    Generally speaking, the- authority of county court upon distribution goes only to determination of relative: interests of those interested in the estate as derived- from ancestor by will or under law of succession; jt does not embrace determination of an interest derived adversely thereto.
    5. Executors and Administrators — Election to Take Independentely of Will — Claim Adverse to Will, Necessity of - Determining Before Distribution — Jurisdiction of Coimty, Circuit, Court.
    Where a will bequeathed personalty to one who claimed to have elected to take independently of the will, and who claimed ownership of the property at time of decedent’s death, and a residuary legatee claimed said personalty adversely to the former because he had so elected, held, the estate was not ready for distribution until the question whether the claimant independently of the will was to take thereundelr, or adversely, was judicially determined; since such determination necessarily determined rights of the residuary legatee under the will; and said question being within cognizance of county court; this notwithstanding county court at time of hearing on final distribution, might have adjourned proceedings t.o afford opportunity for determination of that question in the circuit court, which latter court would have had jurisdiction thereof pending administration of the estate; and circuit court on appeal erred in distributing the estate without determining said question either in an independent action or upon distribution. - ■
    6. Wills — Election to Take Independently of — Character of Question — Judgment in Suit Against Executors and Heirs on Deed, As Evidence in Final Distribution, Effect re Election.
    The question whether one upon whom the duty to elect rests has or not elected to- take .property - independently of a will depends upon the circumstances of each particular case. Held, that obtaining a judgment in- a suit in circuit court against executors and heirs, adjudicating plaintiff as owner of land by virtue of his unrecorded deed, and presentation of copy of the judgment to- county court upon final distribution, manifested plaintiff’s election to take against the will.
    7, Executors and Administrators — Will, Adverse Claims ré Bequest, Devisee — Residuary Bequest — ¡-Claim Adverse to Will — Error re Distribution.
    Where, under a will bequeathing certain personalty to P, who claimed to be the owner of same at time of decedent s death, and who claimed adversely to a devise' to D of realty to which he, -P, held an unrecorded deed, the will containing a residuary bequest of personalty, share and share alike to said claimants and others, held, there ¡being substantially no evidence of' such independent ownership' in P of the personalty, that county court, and circuit court upon appeal from decree of final distribution, should have awarded to D, who was also residuary legatee of personalty, .proceeds of grain sold by executors,'a specific money bequest, and the residuary bequest; and, unless u-pon evidence which might have been but was not received under a stipulation, it had been found that P was the owner of livestock mentioned in the bequest and of which he claimeid to be independent owner, it also should have been awarded to D. '
    Appeal, from Circuit Court, Samborn Ooiunity. Hon. Frank B. Smith, Judge.
    I-n -the matter of the estate of -Benjamin Prerost, 'deceased The county -court hawing made final die-cree of distribution according to the will, awarding Albert M. Prerost -certain personalty and' that certain realty .devised to Josie DeOamp, belonged to Albert M. Prerost as independent lolwner and' as theretofore adjudged by the circuit court, and distributing a certain residue among Ifche residuary legatees; upon appeal frota' said decree to the circuit -court, the latter court having 'distributed -the property as did the county-court, except that it made no distribution o.f said realty, and adjudging certain -personalty bequeathed to 'Albert M..Prerost to- belong toi him independently of the will; from that portion -of the judlgment of circuit court awarding the personalty asidle from thé residuary bequest, in accordance with the will, and distributing the latter property in accordance with ¡the will, and frota' an order denying a new. trial, Josie DeGatop appeals.
    That portion of the judgment 'appealed from-, and the order -denying a new trial, reversed, and cause remanded for further proceedings-.
    
      J. B. Whiting, and1 French, Orvis & French, for Appellant.
    
      Sr A. Ramsey, and Null & Royhl, for Respondent.
    (3) To point three of -the opinion., Appellant -cited:
    Const., Art. 5, Sec. 20; Sec. 24, Prob. Code, as amended by Ch-ap. 63, Laws 1909; Secs. 307, 312, 323, Prob. 'Code; Woermer on American- La-w of Administration, 150, pages- 366, 372-3; In re Cummings’ Estate, (Pa.) 2-5 Atl. 1125; Toland v. -Barle, 129 Cal. 148; 61 Pac. 914.
    Respondent -cited:
    Levenigood’s E-s-tate, 38 Pa. Super. Ct. 491; 40 -Cyc., page 1994, under -item No. 14; 1 Jarman Wills', page 450; In Re Sjurs'oin’s Estate, 29 S. D. 566; Re Thiompso-n’s Estate, 26 S. D. 576.
    (5) To point fine of the opinion, Respondent -cited:
    Allen v. Alien, (Wis.) 16 N. W. 610.
   GATES, J.

The important question up-on this -appeal is whether the -county -co-urt, -ini the -course of administration- of -the estate o-f a decedent, h'as- jurisdiction to- enforce the equitable dolctrine of election. Pomeroy, Eq. Juris. §§ 461-5119; Bispham, Eq. (4th Ed.) §§ 295-306; Alexander on Wills, §§ 813-839; Jarman on Wills (6th Ed.) §§ 531-557; Schouler, Wills, Executors, and Administrators (5th Ed.) § 1489a.

The portions of the last will of Benjamin Prerost, executed November 21, 1913, -material to this appeal, are -as follows-:

“Second. To -my s-onj Albeit M. Prerost, I give, devise -and bequeath all of the personal property to- me belonging, excepting moneys, mortgages, notes and dioses in action, saidi personal -property consisting of cattle, -horses, 'hogs., farm1 machinery, etc., and being located in Sanborn county, South' Dakota, -o-n real estate belonging to me, I -als-o give and -devise to said Albert Prerost the sum -of o-ne thousand1 ($1,000) -dollars in cash. * * *
“Fifth. To my daughter, Josie De Camp, I give, devise and bequeath the southeast quarter o-f section eight (8) in township- one hundred six (106) in range sixty-two (62) in -Sanborn- county, South Dakota. * * *
“Tenth. The residue -of my estate, both real --and personal, no matter where situated or -located) I give, devise and bequeath, share and share alike, to Albert M. Prerost, Joseph F. Prerost, Mary Schaffer, Josie De Cam-p,--anid- Frances > -Druse, sons and daughters, and John Prerost, adopted son.”

:Unless' otherwise .specified, the word “paragraph” herein refers to a paragraph of -said will. ■ • ■

It was, stipulated that the value of the -cattle, -horses-, bogs, and farm machinery mentioned in paragraph 2 was the sum of $3,000, and that Albert M. P;reros-t, claimed' said property -independently of the .will, which' -claim w;a9 disputed ¡by those adversely interested. It -was further stipulated that the net value-of certain grain -sold by the executors was $748.90. It was further 'stipulated that the real property devised by paragraph 5 was, at the time of testator’s death, -olf the value -of $8,000, and that in- an action in the circuit court begun subsequently to -testat-oi-’s- de'aith, in which Albert M. Prerost was plaintiff and the executors anid heirs at law of -decedent were -defendants, if -was adjudged that Albert M. Prerost wa-s the owner of shid real property by virtue of an unrecorded- deed delivered by -testator to him in December, 1912. It was further stipulated that the value of each share of the residue under paragraph 10 was -about $i,ooq.

It -w-as the contention- iclf Josie De Camp that, Albert M. Prerost having elected to take.-adversely to the will the real estate devised to her by paragraph 5, she was entitled to have awarded to her by the final decree of distribution all o-f the -bequests to Albert M. Prerost, in view of the fact that they aggregated a -lesser amount than the value of such real estate, viz.:

(a) Cattle, horses, hogs and machinery (par. 2)........$3,000.00
(ib) Grain sold ;by executors (par. 2).................. 748.90
(c) Money bequest (par.2)............................ 1,000.00
(d) Residuary 'bequest (par. 10) -about.........•........ 1,000.00
$5,748.9°

The -county court distributed the property -of decedent in accordance with ithe terms of the will, except the said real estate, which it distributed in accordance with the said judgment o-f the circuit'court. Upon- appeal to toe circuit -court from' toe final 'decree of distribution, that count distributed toe property -as did the county court, except that -it made no 'distribution of s'aid' real estate, -and except that it adjudged that the c-attle, horses, -hogs, and machinery belonged1 to Albert M. Prerost at the time of testator’s death. 'The court, however, made findings of fact and conclusions of law favorable to Albert M. Prerost with reference to said' real estate. As one of its" conclusion's of law the-court recited:

“That -the -appellant in this proceeding is not entitled! to the relief prayed for by her. That this Court is not in- this proceeding possessed of jurisdiction -to grant the relief prayed for by appellant.” '

From the portions of the judgment relative to above items (a), (b), (c), -and (d), and! from an order denying a new trial, Josie De Oatn-p -appeals.

Without reference to. any other question in-the case, the trial dolurt clearly erred in: deciding that-Albert M. Prerost -owned the cattle, horses., etc., independently of. the will because no evidence was offered! to sustain such finding. The -only thing before the count was the stipulation that one party claimed1 it and the others disputed the claim'. The record ¡also discloses' -an. oral agreement in open court, to the effect that .evidence could be introduced in regard thereto if the trial court found, it necessary to decidle that question. We also wonder how the trial court couldi reconcile its determination to decide that question, even if evidence had1 been offered, in view of its attitude upon the subject of its jurisdiction.

Appellant -also assigns as error the -allowance of a claim to Albert M. Prerost in the sum of $177. The portion of the judgment with reference thereto was not appealed from.; .hence there is no basis for such assignment of error.

It is the aentemtiom of respondent, a-nd in this both the county court and the circuit -court concurred, that the'county court was without jurisdiction to entertain the question of election; that being a matter -cognizable in equity. There are some obiter statements in Ward v. DuPree, 16 S. D. 500, 94 N. W. 397, which probably influenced these courts to adjudge :as they did. In that Case the jurisdiction of the circuit court was .assailed upon the ground that the County court 'had exclusive original jurisdiction, of •that causa of action. All that was really 'decided in that Case upon that question was accurately summarized in the first syllabus to the opinion. By article 5, § 20, of the Constitution, it is provided:

“County Courts shall be courts of record1 and shall have original jurisdiction! in all matters of probate, guardianship1, and settlement of estates of deceased person's.”

The overwhelming weight of decisions under sluch a definition of authority is to the effect that such courts have such equitable jurisdiction as may be necessary to the exercise of their proper functions. Woerner, Law of Administration, § 149; Burris v. Kennedy, 108 Cal. 331, 41 Pac. 458; Heydenfeldt v. Superior Court, 117 Cal. 348, 49 Pac. 210; Toland v. Earl, 129 Cal. 148, 61 Pac. 914, 79 Am. St. Rep. 100; Estate of Freud, 131 Cal. 667, 63 Pac. 1080, 82 Am. St. Rep. 407; More v. More, 133, Cal. 489, 65 Pac. 1044, 66 Pac. 76; In re Wynea’s Estate, 40 S. D. 416, 167 N. W. 394; 15 Corp. Jur. 1011, 1016. *

Generally speaking, the authority of the county court upon distribution, goes only to the extent of determining the relative interests of those interested in the estate .as derived flilom the ancestor by will or under the law of succession, but not an interest derived adversely thereto. 11 Cyc. 796. Thus it is not within the authority of the county court upon distribution ta take cognizance'of liens upon property held by strangers to the estate. Our section 315, Prob. Code (Cal. C. C. P. 1678), does not go to that extent. Estate of Howe, 161 Cal. 152, 118 Pac. 513.

Again if Albert M. Prerost had' not been a beneficiary under the will, we do not 'advance the opinion that the county court would have had authority to determine whether his unrecorded deed or the devise to Josie De Gamp should prevail. *

In those states where the right of dower still exists, it is generally held or assumed that the widow must, before distribution, elect whether she will take her dower interest or under the will adversely thereto, although of course in many states the time in which such election! shall be made is regulated by statute. 4 L. R. A. (N. S.) 1033, note. In Cunha v. Hughes, 122 Cal. 111, 54 Pac. 535, 68 Am. St. Rep. 27, if was held that by failing to. assert her right to community property upon distribution the widow of decedent was presumed to have elected to take under the will.

We are of the opinion under the facts of this case that the estate of the decedent was not ready for distribution until the question whether Albert <M. Prerost was to take under the will or ad versely to it was judicially determined', inasmuch as the 'determination of that question would necessarily determine the rights that Josie De Camp wiciuM acquire by and' undler the provisions of the will. The determination of that question was clearly within the exercise of the proper functions of the county court. It was a question inseparably connected with the proper distribution of -the estate. Unquestionably the circuit court as .a court of equity would have had jurisdiction to determiné that question pending the administration of the estate. Unquestionably, at ¡the time, of the bearing upon final distribution, the county court might have adjourned the proceeding to give an opportunity for the determination of that question iin the circuit court, .but, the question having been squarely before it, we are clearly of the opinion that the county court and the circuit court on appeal erred in distributing 'the estate without having had the matter of election 'determined either in an independent action or upon distribution.

The question whether one upon whom the duty to- elect rests -has or has. not elected depends upon the circumstances' of e-ach particular case. Pomeroy, Eq. Juris. §§ 511-513; Alexander on Wills, §§ 819-828; (Schouler, Wills, Executors, and Administrators (5th Ed.) § 1489a; Owens v. Andrews, 17 N. M. 597, 131 Pac. 1004, 49 L. R. A. (N. S.) 1072. It has been held that the bringing of .a suit for dower indicated .an election to take '.against the will. 49 L. R. A. (N. S.) 1079, n°te S- We do not need to go that far in this case. We are clearly of the opinion that by bringing the action in circuit court against the executors and heirs at law and by obtaining judgment that he was the owner of the land by virtue of his unrecorded deed .and by presenting .a copy of the judgment in .that case to the county court upon final, distribution, Albert M. Prerost unequivocally manifested his election to take against the will, Pomeroy, Eq. Juris. § 514, and that the county court ’and the circuit court upon appeal should have awarded to Josie De ‘Camp items (b), (c), and (d), and, unless upon evidence received it had found Albert to have been the owner of- item' (a), it should .also’ have awarded her that item-

The portions of the judgment appealed, from and the order -denying a new -trial are reversed, and the cause is remanded1 to the trial court for further proceedings not inconsistent with 'this opinion.  