Baumann v. KatzenmeyerBaumann v. Katzenmeyer
This аction was to foreclose a mortgage for $30,000, given to secure notes of $5,000 held by each of the plaintiffs other than Gish as administrator, who as such administrator claimed to be entitled to the interest of Alice Yaeger, Francis Siemering, Herman Siemering, and Mildred Siemering in a note in the sum of $3,333.34, executed by the defendants Katzenmeyer to William Yollbrecht as guardian of Alice Yaеger, Francis Siemering, Herman Siemering, and Mildred Siemering, minors. Mildred died at the age of 11 years, and her estate was probated in the probate court of LeSueur county. Mildred’s interest in the note and mortgage was not specifically mentioned in the inventory or the final decree. The final decree assigned all Mildred’s property, real, personal, and mixed, to her mother, Mary Siemering, as her sole heir. Thereafter the mother died intestate, and her estate was probated and all her property, real, personal, and mixed, was assigned to her children then living, Alice Siemering, now Yaeger, Francis Siemering, and Herman Siemеring, as her heirs at law. It does not appear that Mildred or her mother left any debts. During their minority, Yollbrecht as their guardian advanсed various sums of money to Alice, Francis, and Herman, and when they became of age he paid them the balance thеn due to them, which made the entire payments equal to the amount due under the note and mortgage payable'to him as thеir guardian, and took from them receipts in full, a release, and an oral agreement that they would execute to him an assignment of the note and mortgage. The receipts and release were filed with the probate court, and Vollbrecht wаs discharged from all liability as guardian. The former wards refused to execute the assignment of the note and their interest in the mortgаge as they had agreed. In this action, Gish as the representative of the Yollbrecht estate, asks that as such administrator he be decreed to be the owner thereof. When the case came on for trial the appellants *242 did not appear, and the trial proceeded without them. All the plaintiffs except Gish dismissed the action as to them, and all the defendаnts except Alice Yaeger, Francis Siemering, and Herman Siemering were dismissed with respondent’s consent upon their motion, lеaving only Gish as the plaintiff and Alice Yaeger, Francis Siemering, and Herman Siemering as the defendants. Gish then asked the court not fоr a foreclosure of the mortgage but only that it decree him to be the owner of the interest in the note and mortgage of the defendants then before the court.
The court found the facts as stated and as a conclusion of law ordered judgment that Gish as the administrator of the Vollbrecht estate was entitled to all the interest of Alice Yaeger, Herman Siemering, and Francis Sieméring in the note and mortgage, who appeal from the judgment. Appellants contend (1) that the court below erred in holding that Alice Yaeger, Francis Siemering, and Herman Siemering had succeeded to the right and title of Mildred Siemering in the note and mortgage for the reasons that the probate proceedings in Mildred’s estate were void for failure to inventory and spеcifically describe the note and her interest in the mortgage; (2) that the settlement between the guardian and the wards upon thеir coming of age is void because it amounts to a sale of the note and mortgage of the wards to the guardian, which is prоhibited by 3 Mason Minn. St. 1938 Supp. § 8992-90, which provides: “He shall not purchase any claim against the estate nor shall he purchase direсtly or indirectly or be interested in the purchase of any property sold by him”; and (3) that the proceedings taken at the trial were such a radical departure from the issues made by the pleadings as to amount to an entirely different action from thаt originally commenced and hence the court did not have jurisdiction to grant the relief which it did.
The final decree of distribution оf the probate court in the Mildred Siemering estate was sufficient to assign all her interest in the note and mortgage to her mother. Mildred’s death, her interest in the note and mortgage, and that her mother was her sole heir at law are not disputed. No creditors apparently complained. While indefinite provisions in decrees such as this have not been
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commended, they havе been sustained. It has been held that a final decree of the probate court distributing the known and unknown residue is sufficient to deсree title to lands not described. Such a decree is not void for uncertainty of description, “the general descriptiоn being sufficient upon collateral attack to include omitted lands which might be shown by evidence
aliunde
to have in fact belonged to the decedent at the time of his death.” Humphry v. Protestant Episcopal Church,
The statute prohibiting a representative from being interested in any claim against the estate or in the purchase of any property sold by him has no application to a final settlement between the representаtive and the wards after the latter have become of age to reimburse the former for advances made by him to his wards during the guardianship, since such a transaction is neither a claim against the wards’ estate nor a sale of the wards’ propеrty by the guardian. The settlement is not attacked on any other grounds.
There was no departure from the issues made by the pleаdings. The judgment was confined to one issue between the respondent and the appellants. The dismissals of parties plaintiff аnd defendant by consent were within the right of the parties to agree to dismissal. Appellants cannot complain that respondent did not insist on all the relief which he demanded under the pleadings.
Affirmed.