Complaint in action to compel specific performanceof decedents' oral contract for conveyance of realestate held not demurrable for defect of parties de-fendant, where alleged contract was made by hus-band and wife, husband predeceased wife leavingproperty to her, and action was against wife's ad-ministrator and her sole heir at law.
L. H. Woodworth and Lewis W. Bicknell,both of Webster, for appellants.Rex W. Harris, of Webster, and B. O. Stordahl, of Sioux Falls, for respondent.POLLEY, Judge.Gilbert D. Peterson and Laura Alice Peterson, bothnow deceased, were husband and wife, but do notappear to have had any children. Plaintiff, Arthur L.Peterson, was the son of Sib Peterson, deceased,who was a brother of said Gilbert D. Peterson, andtherefore was a nephew of the said Gilbert D.Peterson. The defendant Myrle Cussons claims tobe the sole heir at law of said Laura Alice Peterson.Gilbert D. Peterson died testate in the month of Ju-ly, 1930. By his last will and testament he devisedall of his estate to his said wife, Laura AlicePeterson. The Gilbert D. Peterson estate was worthmore than $20,000. Therefore, had it not been forthe last will and testament of said Gilbert D.Peterson, plaintiff, Arthur L. Peterson, would havebeen entitled to a distributive share of
the es-tate of said Gilbert D. Peterson. Subdivision 2, §701, Rev. Code 1919, as amended by chapter 186,Laws 1923.The said last will and testament of Gilbert D.Peterson was admitted to probate and his entire es-tate was distributed to and assigned to his said wid-ow, Laura Alice Peterson. Laura Alice Petersondied intestate during the month of January, 1933,leaving surviving her the said Myrle Cussons whois alleged to be the sole heir at law of said de-cedent.Plaintiff in his complaint alleges:“That prior to the death of Gilbert D. Peterson andhis wife, Laura Alice Peterson, and on or about the2nd day of April, 1929, the 5th day of July, 1929,and the 31st day of August, 1929, at Webster,South Dakota, they, and each of them, for a goodand valuable consideration made and entered intoan oral agreement with this plaintiff by the terms of which agreement the said Gilbert D. Peterson andLaura Alice Peterson promised and agreed that theywould so dispose of their property that upon thedeath of the survivor of them the plaintiff hereinwould receive one-half of all the property left bysaid survivor. That the property left by said surviv-or is specifically described in Exhibit ‘A’ annexedto the original complaint, and hereby made a part of this complaint as if incorporated herein in full, andthat the aforesaid Laura Alice Peterson, now de-ceased, became the survivor of said promisors, andfailed, refused and neglected to make such disposi-tion of their property that upon her death the saidArthur L. Peterson would become the owner of one-half of the property hereinbefore specificallydescribed.“That at the time of the execution of the purportedwill by Gilbert D. Peterson, which said will was ad-mitted and allowed in probate as hereinbefore setforth, the said Gilbert D. Peterson was honestly be-lieved by this plaintiff and others to be of unsoundmind and incompetent to execute any will under thelaws of the State of South Dakota, and that at thetime of the death of said Gilbert D. Peterson, and atthe time of the admission of said will to probate,this plaintiff honestly believed that the purportedLast Will and Testament of said Gilbert D. Petersoncould be successfully contested and set aside andheld for naught, and because of the promises of thesaid Gilbert D. Peterson and Laura Alice Petersonto dispose of one-half of their property in such amanner that it would become the property of thisplaintiff upon the death of said survivor, thisplaintiff refrained from instituting any contest pro-ceedings of the said Last Will and Testament.“That prior to the death of Gilbert D. Peterson in258 N.W. 810 Page 263 S.D. 357, 258 N.W. 810
(Cite as: 63 S.D. 357, 258 N.W. 810)
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