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BUSINESS LAW CHAPTER 9 THIRD PARTY CONTRACTS (CONTRACT LAW) CASES FOR ANALYSIS;
specific performance by virtue of the court; gratiutious

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54 N.W.2d 741
74 S.D. 503, 54 N.W.2d 741
(Cite as: 74 S.D. 503, 54 N.W.2d 741)
Supreme Court of South Dakota.
LASS et al.
v.
ERICKSON et al.
ERICKSON et al.
v.
LASS et al.
No. 9282.
Aug. 25, 1952.
Actions, by Fred Lass and Belle M. Lass against F.
A. Erickson, as administrator of the estate of Selma
C. Erickson, deceased, and Charles J. Erickson, for
specific performance of alleged contract by the de-
cedent to convey property by will, and by F. A. Er-
ickson as administrator of the estate of Selma C.
Erickson, deceased, against Belle M. Lass and Na-
tional Bank of South Dakota, Sioux Falls of Ver-
million, South Dakota, to recover assets allegedly
belonging to the decedent, wherein Axel T. Seger,
and others, intervened as defendants. The Circuit
Court, Clay County, Walter H. Seacat, J., dismissed
the complaint of Fred Lass and Belle M. Lass, and
decreed that the administrator recover the assets
held by Belle M. Lass and the Bank, and decreed
that the intervening defendants, who claimed as
heirs at law of the decedent, take nothing, and the
intervening defendants appealed. The Supreme
Court, Roberts, J., held that the Circuit Court prop-
erly exercised its equity jurisdiction in dismissing
the complaint and in decreeing recovery of the as-
sets, but erred in determining rights of heirship,
which did not arise out of the causes, and should
have returned proceedings to county court for such
determination.
Reversed in part and remanded.
West Headnotes
[1] Wills 409 58.5(1)
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Page 1
409 Wills
409III Contracts to Devise or Bequeath
409k58.5 Making, Requisites, and Validity in
General
409k58.5(1) k. In general. Most Cited
Cases
(Formerly 409k58(1))
A person may make a valid agreement to make a
disposition of his property by will.
[2] Specific Performance 358 86
358 Specific Performance
358II Contracts Enforceable
358k86 k. Contracts to adopt, devise, or be-
queath. Most Cited Cases
It is within the jurisdiction of equity to require the
equivalent of specific performance of an agreement
to make disposition of property by will, after the
death of the promisor, by requiring transfer of his
property in accordance with the terms of the agree-
ment.
[3] Courts 106 475(2)
106 Courts
106VII Concurrent and Conflicting Jurisdiction
106VII(A) Courts of Same State
106VII(A)1 In General
106k475 Pendency and Scope of Prior
Proceeding
106k475(2) k. Probate proceedings,
administration, distribution, and settlement of es-
tates. Most Cited Cases
Under its general equity jurisdiction, the circuit
court had power pending administration of an estate
to adjudicate the equitable issues presented with re-
lation to the alleged existence of a contract by the
decedent to make a will disposing of the property
comprising the estate. Const. art. 5, § 14.
[4] Courts 106 472.4(2.1)
106 Courts
106VII Concurrent and Conflicting Jurisdiction
54 N.W.2d 741 Page 2
74 S.D. 503, 54 N.W.2d 741
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106VII(A) Courts of Same State The rule of retaining equity jurisdiction to adjust all
106VII(A)1 In General claims does not extend to a claim having no relation
106k472 Exclusive or Concurrent Jur- to the rights of the plaintiffs or the cause alleged in
isdiction the complant.
106k472.4 Probate Courts
106k472.4(2) Decedents' Es- [7] Specific Performance 358 122
tates, Administration of
358 Specific Performance
106k472.4(2.1) k. In general.
358IV Proceedings and Relief
Most Cited Cases
358k122 k. Dismissal before hearing. Most
(Formerly 106k472.4(2), 106k472(4))
Cited Cases
Although the county court has original jurisdiction
of estate, such jurisdiction is not exclusive. Const. Specific Performance 358 127(1)
art. 5, § 20.
358 Specific Performance
[5] Equity 150 39(1) 358IV Proceedings and Relief
358k125 Relief Awarded
150 Equity
358k127 Alternative, Additional, or Incid-
150I Jurisdiction, Principles, and Maxims
ental Equitable Relief
150I(A) Nature, Grounds, Subjects, and Ex-
358k127(1) k. In general. Most Cited
tent of Jurisdiction in General
Cases
150k37 Retention of Jurisdiction Ac-
In circuit court suit against purported husband of an
quired
intestate and against administrator of her estate for
150k39 Complete Relief
specific performance of alleged contract by intest-
150k39(1) k. In general. Most Cited
ate to convey her property to plaintiffs by will,
Cases
wherein interveners claimed rights to the estate as
The circuit court having acquired jurisdiction of
heirs at law, circuit court, in proper exercise of its
subject matter involved in probate in order to exer-
equity jurisdiction, determined that plaintiffs com-
cise general equity powers for a particular purpose
plaint should be dismissed, but erred in determining
not within the competency of the county court and
rights of heirship between defendants and inter-
its limited equity powers, does not proceed to a
veners.
complete administration, settlement and distribution
of the estate, but should send the cause back to the [8] Equity 150 53(1)
probate court for further administration after ac-
complishment of the particular purpose. 150 Equity
150I Jurisdiction, Principles, and Maxims
[6] Equity 150 39(1) 150I(B) Remedy at Law and Multiplicity of
Suits
150 Equity
150k53 Waiver of Objections
150I Jurisdiction, Principles, and Maxims
150k53(1) k. In general. Most Cited
150I(A) Nature, Grounds, Subjects, and Ex-
Cases
tent of Jurisdiction in General
Where intervening defendants made timely and pre-
150k37 Retention of Jurisdiction Ac-
liminary objection in their answer challenging the
quired
jurisdiction of the court of equity to determine the
150k39 Complete Relief
issue in which they were interested, jurisdiction by
150k39(1) k. In general. Most Cited
consent, if conferable by the parties at all, was not
Cases

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54 N.W.2d 741
74 S.D. 503, 54 N.W.2d 741
(Cite as: 74 S.D. 503, 54 N.W.2d 741)
obtained notwithstanding that intervenors particip-
ated in the proceedings after their objection was
denied.
[9] Specific Performance 358 127(1)
358 Specific Performance
358IV Proceedings and Relief
358k125 Relief Awarded
358k127 Alternative, Additional, or Incid-
ental Equitable Relief
358k127(1) k. In general. Most Cited
Cases
The circuit court, in determining issues in suit by
intestate's administrator for property held and
claimed by defendants under an alleged contract by
intestate to convey such property by will, should
not have determined rights as between administrat-
or and certain interveners, who claimed the prop-
erty involved as heirs at law of the intestate.
**742 *504 E. G. Jones, Sioux Falls, for appellants.
Danforth & Danforth, Sioux Falls, W. R. Cleland,
Vermillion, for respondents.
ROBERTS, Judge.
The record presents an appeal from two judgments,
one in favor of defendants in an action brought for
the specific performance of a contract to leave
property *505 by will in consideration of services
rendered, and the other in favor of plaintiff admin-
istrator in an action for the recovery of assets.
Selma Erickson died intestate on Cotober 4, 1949, a
resident of Clay county, South Dakota. On May 9,
1952, Charles J. Erickson, as surviving husband,
filed a petition in county court asking that his
brother, F. A. Erickson, be appointed administrator.
This petition was granted and the appointee quali-
fied as administrator of the estate.
On April 12, 1950, an action was begun in circuit
court by Fred Lass and Belle M. Lass against
Charles J. Erickson and the administrator. The com-
plaint alleged that Selma Erickson entered into an
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
oral contract with plaintiffs whereby she agreed
that if they would take her into their home and
provide her with room, board and companionship
until her death she would make a will devising and
bequeathing to them all her property; that plaintiffs
on their part have fully performed the agreement;
and that Selma Erickson died without making the
will. The complaint concludes with a prayer that the
administrator specifically perform the contract and
execute necessary instruments of conveyance. De-
fendants answered denying that there was such an
agreement and alleging that the defendant Charles
J. Erickson as surviving husband was entitled to
distribution of all the property of the estate, the
same being of insufficient vaue to entitle other heirs
at law to share therein.
The second action referred to was then commenced
by the administrator against Belle M. Lass and The
National Bank of South Dakota, Vermillion Branch,
to recover funds in the bank represented by certific-
ates of deposit and a checking account. Defendant
Belle M. Lass answered claiming that the certific-
ates and all money deposited in the checking ac-
count were made payable in part performance of the
claimed contract to the order of either Selma Erick-
son or Belle M. Lass or survivor.
A brother and two nieces of the decedent, as heirs
at law, applied to the circuit court for leave to inter-
vene. This the court granted. The court found that
no contract existed between the plaintiffs Fred and
Belle M. Lass and the decedent to make a will; that
Charles J. Erickson is the surviving*506 husband of
the decedent; and that interveners have no right,
title or interest in the estate, the same being less
than $20,000 in value. The intervening defendants
alone appeal from the judgment in each action.
They claim that the circuit court was without juris-
diction to determine the relationship of Charles J.
Erickson to the decedent; that the determination to
such an issue was within the exclusive jurisdiction
of the county court. They also challenge the finding
that decedent was the common law wife of Charles
J. Erickson. The actions were consolidated for trial
54 N.W.2d 741
74 S.D. 503, 54 N.W.2d 741
(Cite as: 74 S.D. 503, 54 N.W.2d 741)
in the circuit court and are here on one record.
[1][2][3] A person may make a valid agreement to
make a disposition of his property by will.
Beveridge v. Bailey, 53 S.D. 98, 382, 220 N.W.
462, 868, 60 A.L.R. 619; Dawson v. Corbett, 71
S.D. 106, 21 N.W.2d 758. It has long been recog-
nized that it is within the jurisdiction of equity to
require the equivalent of specific performance of
such an agreement after the death of the promisor
by requiring transfer of his property in accordance
with the terms of the agreement. See Annotations:
69 A.L.R. 26 and 106 A.L.R. 746. The circuit court
having general equity jurisdiction (Const. Art. V, §
14) unquestionably had **743 power pending ad-
ministration of the estate to adjudicate the equitable
issues presented with relation to the existence of a
contract to make a will. Ewing v. Waddington, 62
S.D. 166, 252 N.W. 28.
[4][5] Appellants contend that there were separate
and distinct matters involved and that notwithstand-
ing the nature of the action the county court had
sole jurisdiction to determine who were the heirs
and what property they were entitled to as such and
that the judgment to that extent is void. This con-
tention is based upon the provisions of the Consti-
tution (Art. V, § 20) vesting in the county court
‘original jurisdiction in all matters of probate,
guardianship and settlement of estates of deceased
persons'. While the county court has original juris-
diction of estates, we have repeatedly held that such
jurisdiction is not exclusive. Trotter v. Mutual Re-
serve Fund Life Ass'n, 9 S.D. 596, 70 N.W. 843, 62
Am.St.Rep. 887; Welsh v. Krause, 38 S.D. 264, 161
N.W. 189; Jacquish v. Deming, 40 S.D. 265, 167
N.W. 157; Song v. Song, 64 S.D. 555, 268 N.W.
905; *507 Howe v. Larson, 68 S.D. 203, 299 N.W.
876; Doling v. Hyde County, 70 S.D. 339, 17
N.W.2d 693; Newton v. Erickson, S.D., 41 N.W.2d
545. An examination of the cases cited will show
that even though the subject matter may be in-
volved in probate resort must be had to the circuit
court if general equity powers are to be invoked
since the county court has only such limited equity
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
powers as are necessary to the exercise of its proper
functions. The circuit court having acquired juris-
diction of a subject matter involved in probate for a
particular purpose not within the competency of the
county court does not proceed to a complete admin-
istration, settlement and distribution of the estate. A
recognized authority states the rule to be that the
equity ‘court, after the accomplishment of the par-
ticular purpose, will send the cause back to the pro-
bate court for further administration, rather than
take the entire proceeding away from the usual for-
um, adopting the principle that the jurisdiction of
equity should cease with the necessity for the exer-
cise therefor’. Pomeroy's Equity Jurisprudence (5th
Ed.) § 235. Jacquish v. Deming, supra, an action for
an accounting and determination of the rights of the
parties to an unadministered estate, does not ex-
press a contrary view. The appeal was from an or-
der sustaining a demurrer to the complaint. The
county court is the court of original jurisdiction in
which claims against a decedent's estate must be
filed and adjudicated, but it appeared from the al-
legations of the complaint in that case that there
were no debts and that the plaintiff and defendants
were the sole heirs. The county court not having ac-
quired jurisdiction of the res and a decree of distri-
bution of that court having no other effect than to
release title of which the heirs become vested, on
the death of the ancestor, from the conditions of ad-
ministration, the circuit court had jurisdiction to
hear and determine the controversy between the
parties in its entirety. The allegations of the com-
plaint were sufficient to show that the subject mat-
ter involved could be properly litigated in the cir-
cuit court.
[6][7] The trial court in the proper exercise of its
jurisdiction determined that plaintiffs in the action
for specific performance of the contract to make a
will failed *508 to establish the allegations of their
complaint in that respect and accordingly entered
judgment dismissing their complaint. We then have
for consideration the question whether the circuit
court should have entered judgment in favor of de-
fendants and against the interveners determining
54 N.W.2d 741 Page 5
74 S.D. 503, 54 N.W.2d 741
(Cite as: 74 S.D. 503, 54 N.W.2d 741)

heirship. Respondents claim that it was the duty of
the trial court sitting as a court of equity to retain
jurisdiction for all purposes and to decide all issues
which were involved including those between de-
fendants and interveners and make a final disposi-
tion of the litigation. The adjudication of course
could not extend beyond the limits of jurisdiction of
subject matter and persons. There are a number of
heirs at law of Selma Erickson, deceased, who are
not parties to the action. It is the contention of ap-
pellants that the judgment determining who are en-
titled to take by distribution has the effect of taking
from these heirs claims to property without them
being represented or having their day in court. But
aside **744 from the question of adjudicating
rights of interested persons who are not parties to
the action or represented, we do not think that the
rule of retaining jurisdiction to adjust all claims ex-
tends to a claim having no relation to the rights of
the plaintiffs or the cause alleged in the complaint.
30 C.J.S., Equity, § 77. The complaint was one for
specific performance of a contract. The controversy
between defendants and interveners with respect to
heirship did not arise out of the cause alleged in the
complaint or have any relation to the rights of
plaintiffs under an alleged contract. The circuit
court having thus obtained jurisdiction over the
subject matter of the estate for a particular purpose
not within the competency of the county court
should not have gone on and decided an independ-
ent controversy capable of being tried by the county
court.
the court ‘to determine the proportions of descent
of decedent's property among her heirs at law’. The
answer asked for dismissal of the complaint and for
judgment for costs against plaintiffs. Interveners
made timely and preliminary objection and if equity
jurisdiction of a probate matter can be conferred by
consent it is fairly established by the record that in-
terveners did not consent to submission of the issue
of heirship to the circuit court.
[9] The situation presented in the action com-
menced by the administrator for the recovery of as-
sets in legal effect does not differ with respect to a
determination of the issue of heirship from the ac-
tion which we have considered.
The dismissal of the complaint in the one action
and the right to recovery of assets in the other are
not here controverted. The judgment in so far as
they decree who are the heirs at law of Selma Er-
ickson, deceased, and what proportions they are en-
titled to as such are reversed and the causes are re-
manded for further proceedings not inconsistent
with this opinion.
All the Judges concur.
S.D. 1952
Lass v. Erickson
74 S.D. 503, 54 N.W.2d 741
END OF DOCUMENT

[8] There are subjects which a court of equity has

no power to hear and determine even by consent of
the parties. Respondents urge, however, that the
subject matter may be of such character that juris-
diction may be conferred by consent and that a
party will not be heard to complain if he makes no
objection to a hearing and participates therein. The
petition for intervention alleged that there was no
contract to make a will and that Charles J. Erickson
was not *509 an heir at law of decedent. The an-
swer of interveners contained allegations to the
same effect and also challenged the jurisdiction of

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.