266 N.W. 841 | Minn. | 1936
The action is for specific performance of an alleged contract made between the deceased Mary Anderson and her nine children to leave her estate to the children in equal shares. On May 17, 1929, Ole Anderson, a resident of St. Louis county, the husband of Mary Anderson and the father of the children, died intestate, leaving real and personal property of the value of some $30,000. Part of the real property was the homestead, worth about $7,000. The widow *254 was appointed administratix. On May 26 or June 2, 1929, the seven sons met with their mother at the home of the son Norman. The daughter Carrie remained in the home of the mother, next door, to care for a child, but knew that a meeting was being held. At this meeting it was agreed that the children should transfer their interest in the father's estate to the mother upon her promise that upon her death the children should share equally in her estate. Pursuant to this agreement each child, in June, 1929, conveyed his or her interest in the real estate of the father to the mother, and at about the same time transferred the personal property by bill of sale. They also gave to her, as administratrix of her husband's estate, receipts in full for their share in the inheritance. These were filed in the probate court, and the final decree of distribution therein was entered December 26, 1929.
The mother, Mary Anderson, died testate November 10, 1933, and her son Norman R. Anderson was, on May 19, 1934, appointed legal representative of her estate and has qualified. Mary Anderson did not will her estate in equal shares to her children; but by her will bequeathed to her daughter Pauline $1,000 and devised to her daughter Carrie the homestead and to the son Norman certain part of the real estate, the residue to go to the seven sons and the daughter Carrie in equal shares, $1,000 advanced to the son William to be deducted from his share.
The trial court's findings of fact and conclusions of law are attacked by many assignments of error, all of which need not be dealt with. The main questions raised and which control the decision are: (1) Is there sufficient evidence of the character required to support the agreement found? (2) Is that agreement of such a nature that it may be enforced in equity, or is it one to be filed as a claim against the estate of Mary Anderson? (3) Error in excluding certain testimony. (4) Impropriety in the conclusions of law.
Plaintiffs' cause of action rests upon a parol contract. They concede, is appellants contend, that such a contract to be entitled to specific performance must be established by proof that is clear, positive, and convincing. These cases are cited from this court: *255
Fiske v. Lawton,
Is the agreement one enforceable in equity? It is contended that each child has a remedy by filing a claim against the mother's estate for the value of his or her interest in the father's estate that was transferred to the mother. This would ignore the mutuality of the contract as between the children as well as between the mother and the children, and proceeds on the theory that the contract was a separate engagement between the mother and each child, and a breach thereof could be redressed by a recovery at law for the value *257
of the interest in the father's estate transferred to the mother; hence this action for specific performance does not lie. The mother agreed to share, not the interest transferred to her by the children in the father's estate, but the estate she should leave, equally between the children. So it would not seem feasible for each child to file a claim in the probate court against the mother's estate. Counsel for plaintiffs as well as the trial court seem to be impressed with the fact that certain of the property of the mother's estate could be regarded as heirlooms by the children or as possessing certain sentimental value, as, for instance, the family Bible, the household goods, and the home in which they had been reared, and furnished a court of equity with sufficient ground for taking jurisdiction of the controversy. This seems of little force, for if the children cannot agree as to the division or partition of certain real or personal property left by their parents, to which sentimental value is attached, the court can not well parcel it out but must direct it to be sold and the proceeds distributed. However, it is well established now that the district court has jurisdiction of actions for specific performance of a contract to will real estate. That such contract embraces also personal property ought not to defeat relief. Under the contract, as found by the court, there had been full performance by the children. In such a case they are entitled to specific performance; their rights in the mother's estate attached as of her death, subject only to the payment of the debts and expenses of her last sickness, of funeral, and of administration. We think the subject is so fully treated in Odenbreit v. Utheim,
"Assuming that plaintiff, by virtue of the contract, possessed the same rights as a natural child, and no others, she is concluded by the judgment rendered by the probate court, and cannot enforce, in this action, the rights of a pretermitted child. But if the contract with the Utheims expressly provided, not only that plaintiff should be adopted by them but also that she should receive their property, or a child's share thereof, at their death, a different question is presented. Under such a contract, the rights of plaintiff would not depend upon the will, nor upon the laws of descent, but would be fixed and determined by the contract. Such rights attach to the property of the decedent by virtue of the express contract made by him in his lifetime; and create, or at least may create, a claim of title to the property adverse to the title thereto given by will or by the laws of descent. The determination and enforcement of such rights is ordinarily beyond the jurisdiction of the probate court; and they are unaffected by a decree of the probate court determining the devolution of the property of the decedent, at least unless they have been submitted to that court for determination."
Among the authorities cited is Mousseau v. Mousseau,
"The agreement was confessedly entered into for the purpose of quieting disputes between the children of the same father, in relation *260 to the disposition of his property; it is apparently equal; it is not denied to be fair; and was deliberately assented to as a proper and just family arrangement. Such arrangements are upheld by considerations, affecting the interests of all parties, often far more weighty than any considerations simply pecuniary."
2 Beach, Modern Eq. Jurisprudence, § 1003, states:
"Fair compromises, especially between members of a family, are favorably looked upon by courts of equity, their object being to prevent or put an end to litigation and to preserve the peace and property of families."
It is claimed that plaintiffs are not entitled to specific performance under the decision of Whitman v. Dittman,
Error is assigned upon the refusal of the court to permit the attorney of Mary Anderson, who drew her will, to answer a question put to him by counsel for appellants whether he had ever heard either of respondents make a claim that their mother had ever agreed to share her estate equally among her children. There is nothing in the record tending to show that any of respondents had any occasion to assert such a claim to the attorney.
There are some objections to the conclusions of law insofar as there is an assumption to direct the probate court. The objections are, perhaps, justifiable in that the district court has no authority to direct the probate court to proceed except on appeals from the probate court. But whatever may be improper in the conclusions of law in that respect may be remedied by motion before entry of judgment. No friction between the two courts is to be anticipated. The probate court will undoubtedly give heed to the final judgment of the district court herein.
There are other assignments of error, but we deem those above considered determinative of the appeal.
The orders are affirmed.