File No. 8156.
Opinion filed December 30, 1938.
1. Appeal and Error.
In proceeding involving construction of will devising mortgaged realty to testator's daughters and providing for payment of testator's debts, refusal to admit evidence of declarations of testator that realty devised to daughters would be subject to mortgage was not prejudicial in view of ultimate finding that testator had assumed and agreed to pay mortgage and that mortgage constituted debt, since ambiguity, if any, in language disappeared and no effect could have been given to declaration of testator in disregard of express provision of will to pay debts.
2. Appeal and Error.
On appeal from judgment of circuit court construing will devising mortgaged realty to testator's daughters and providing for payment of debt, finding of court that testator had assumed and agreed to pay mortgage debt was not required to be considered where appeal was from judgment alone.
3. Executors and Administrators.
Where will made specific devise of mortgaged realty to testator's daughters and provided for payment of debts, executors could pay mortgage on realty from other funds of estate, where testator had assumed mortgage debt, notwithstanding that no claim was presented to executors or filed against estate for amount of mortgage debt.
Under will specifically devising mortgaged realty to testator's daughters and providing for payment of testator's debts, payment of mortgage indebtedness secured by realty devised was to be made from other funds of estate, in so far as possible, in order to effectuate gift.
5. Appeal and Error.
Where an appeal is from the judgment only and not from the order overruling the motion for new trial, the reviewing court will not determine the sufficiency of evidence.
6. Appeal and Error.
On appeal from judgment alone, reviewing court would not consider assignment of error relating to sufficiency of evidence to support findings of fact and conclusions of law and judgment.
Appeal from Circuit Court, Minnehaha County; HON. JOHN T. MEDIN, Judge.
Proceeding in the matter of the estate of John P. Johnson, deceased, wherein Joseph Elsworth Johnson and another were appointed executors. From a decree of the County Court that Lovis Petronella Evans and another, as devisees under the will of John P. Johnson, deceased, should take realty specifically devised to them subject to mortgage, Lovis Petronella Evans and another appealed to the Circuit Court, and, from a judgment of the Circuit Court determining that the devisees should take the land free and clear of encumbrances and ordering the executors to pay the mortgage indebtedness out of the general funds of the estate, the executors and Adolph Leonard Johnson and others appeal.
C.A. Christopherson, Jr., and B.O. Stordahl, both of Sioux Falls, for Appellants.
Caldwell Burns, of Sioux Falls, for Respondent.
John P. Johnson, a resident of Minnehaha County, South Dakota, died in January, 1934, leaving a last will and testament. The will was admitted to probate, and executors thereof were appointed. Decedent made a specific devise of land of approximately equal value to each of his ten children. The real property devised was free and clear of encumbrances, except a quarter section devised to the plaintiffs, his daughters, which was mortgaged to the Federal Land Bank of Omaha in the sum of approximately $7,000. The county court decreed that it was the intention of the testator that the plaintiffs should take the land specifically devised to them, subject to the mortgage. The plaintiffs appealed to the circuit court which determined that it was the intention of the testator to devise the land in question free and clear of encumbrances, and the executors were ordered to pay out of the general funds of the estate the mortgage indebtedness. This appeal is from the judgment of the circuit court only, as the appeal from the order denying the defendant executors' motion for new trial has been dismissed.
On this appeal appellants have presented six assignments of error. Assignment of error No. 1 concerns a certain offer of proof presented by appellants to the circuit court. Appellants contend that the circuit court erred in refusing appellants the right to show by statements of the deceased, made at the time of the drafting of the will, that it was testator's intention that the land devised to respondents would be subject to the record encumbrance. Appellants argue that the intention of the testator as to the payment of this mortgage cannot be discerned and determined from the language of the will itself and it is therefore ambiguous, and that the ambiguity being latent, the declarations of the testator are admissible for the purpose of showing his intention.
[1, 2] In dealing with and considering this assignment of error, it seems fair to us to say that the ruling on the offer of proof could not have been prejudicial to appellant for the reason that had the evidence been admitted, and when the court came to its ultimate conclusion that the testator had assumed and agreed to pay the mortgage, and that the mortgage constituted a debt, all ambiguity would naturally have disappeared and the court could not have given any effect to the declaration of the deceased because so to do would have been to disregard an expressed provision contained on the face of the will to pay debts. The finding that the court made upon the assumption of the debt need not be considered because the appeal is from the judgment alone.
[3, 4] Appellants urge that no claim was presented to the executors or filed against the estate for the amount of the encumbrance upon the real estate, that the respondents therefore cannot legally pay off this encumbrance. The California court in Re Estate of De Bernal, 165 Cal. 223, 131 P. 375, Ann. Cas. 1914D, 26, treating a similar situation said: "It is likewise held that, as between the executor and those interested in the estate, it can make no difference in this regard that the holder of the mortgage does not present his claim against the estate, but prefers to rely entirely on the future enforcement of his lien against the specific property mortgaged. See Page on Wills, § 765; Turner v. Laird, 68 Conn. 198, 35 A. 1124. As suggested in the case just cited, the extent of the testator's bounty to a certain person cannot thus be reduced by the acts or omissions of the creditor, and, as between the executor and those interested in the estate, the payment should be made from other funds of the estate, so far as it can be, in order to effectuate the gift from the testator to the specific devisee." And in the case before us there is sufficient other property in the form of a large amount of personal property that can be used to satisfy the mortgage indebtedness without disturbing the devise, thus carrying out the intention of the testator.
[5, 6] Assignments of error two to six, inclusive, concern themselves with the sufficiency of the evidence to support the findings of fact, conclusions of law and judgment of the circuit court. As previously stated, the appeal from the order denying appellant's motion for new trial has been dismissed. In re Johnson's Estate, Evans et al. v. Johnson et al., 66 S.D. 256, 281 N.W. 113. Therefore, the present appeal is from the judgment only. It is well-settled rule of this jurisdiction, needing no lengthy statement of authority, that where an appeal is from the judgment only and not from the order overruling the motion for new trial, this court will not determine the sufficiency of the evidence. Hutchinson County v. Bender et al., 64 S.D. 109, 264 N.W. 816. It follows that assignments of error two to six, inclusive, have no bearing on the disposition of this appeal.
The judgment appealed from is affirmed.
POLLEY, RUDOLPH, and SMITH, JJ., concur.
ROBERTS, P.J., concurs in result.