In Re Vasgaard's Estate , 62 S.D. 421 ( 1934 )

The heirs of the estate of Endre J. Vasgaard entered into a written agreement disposing of the assets of the estate and by so doing the provisions of the will have been completely nullified. There is nothing of it left upon which the court can act; that is, it leaves the person named in the will as executor without any estate to administer and surely no property over which he can exercise dominion and control.

It may be argued that a will naming an executor, properly executed, is a will. Such cannot be the intention and the real meaning of a will. Sections 604 to 698, inclusive, of the S.D. 1919 Revised Code, surely indicate that there must be property. In the first section the fact is mentioned that every person may dispose of his estate real and personal. In fact there is a continuous thought running through all of the sections that a will has for its object the disposition of real and personal property. In Black's Law Dictionary we find will defined as follows: "A will is the legal expression of a man's wishes as to the disposition of his property after his death; an instrument in writing executed in form of law by which a person makes a disposition of his property to take effect after his death." (Italics ours.)

Effect must be given to the purpose of the making of a will. If there is no property then the making of the will and its admission to probate is an idle act. Section 64, 1919 S.D. Revised Code: "The law neither does nor requires idle acts." In the case before us it surely is an idle act as there is nothing left excepting the instrument and the individual named as executor. Wills are made for the purpose of disposing of property in whatever form it may be and not for the mere purpose of having an executor, who would have nothing to do and no office to perform.

In the presenting of a will for probate, under our probate procedure, one of the requisites of section 3203, 1919 S.D.R.C., is the showing of the probable value and character of the property of the estate. In the case before us the property has been disposed of by the contract in writing. There is, therefore no property to be disposed of by the terms of the will, and the very purpose of drawing the will has been defeated, and I doubt that the court could take jurisdiction for the reason that it cannot truthfully be said that, under section 3203, paragraph 4, there is any property belonging to the estate, and, without being able to show that there is property, the court cannot take jurisdiction. Subdivisions 2, 3, and 4 of section 3178, 1919 S.D. Revised Code, dealing with wills which must be proved, use the term "estate"; again, in section 3179, the term "estate of decedent" is used. It is quite clear that the entire structure of our statutory law pertaining to wills is based upon the fact that there must be property or estate. Without estate there is nothing. In fact there are no jurisdictional facts without the showing of property which makes up an estate. I am thoroughly in accord with the holding expressed in Lloyd's Estate, 24 Pa. Co. Ct. R. 567, and also with the written opinion written by Judge Polley (Haugen v. Larson) reported in 60 S.D. 438, 244 N.W. 654.

The judgment and order appealed from should be affirmed.