193 N.W. 317 | N.D. | 1923
Statement.
This is an action to determine adverse claims
“Twelfth. I give, devise, and bequeath unto the St. Paul Trust Company, as trustee, two certain farms and parcels of land situated in Pembina County, Dakota Territory, being the same tracts and farms of land heretofore sold and conveyed to me by my son, Robert J. Strong, and his wife. To have and to hold the same as such trustee, upon the trusts following, viz.: to demise, lease and let the said farms, upon such time and terms as to the said trustee may seem best, to collect the rentals and income therefrom, to pay the taxes and other' expenses necessary to the execution of said trust, for and during the natural life of my said son, Robert J. Strong, to pay over the said net rentals and income, either to my said son, or to his wife, or to his children, or to the guardian of such children, as may be best for his family, in the judgment and discretion of the officers of said trustee; and upon and after his death, to sell the said real estate or any part thereof, upon such- terms and times as to said trustee shall seem best, and to pay over the net proceeds of such sales either to the widow of my said son, if any, or to his surviving children, or to the lawful guardian of his minor children, as to said trustee shall seem for the best interests of the widow or children of my said son. Provided always, that, if my said son shall choose to reside upon and occupy either of said farms and cultivate the same, he may do so, without rental, and during his lifetime, so long as he shall pay the taxes and other lawful assessments against the same. But my said son shall have no control over the income or rentals of any of said real estate, during his lifetime.”
They further alleged that the will was duly admitted to probate in the probate court of Ramsey county, Minnesota; that the -nominative trustee, the defendant St. Paul Trust Company, entered upon the exe-
On September 28d, 1921, the trial court made findings of fact conforming substantially to the facts alleged in the reply and ordered the
On March 22nd, 1922, at Washington, District of Columbia, the defendant, Robert J. Strong, died. On April 14th, 1922, the defendant Ella 0. Strong appealed from the judgment. She had requested a trial do novo in this court.
Tire record is voluminous. It is necessary to state the facts somewhat at length. These facts are: The defendants Eobert J. Strong and Maggie Strong were married in Philadelphia in October, 1864. Eobert secured a divorce from Maggie at St. Louis, Missouri, in January, 1876, but he afterwards lived with her in St. Louis, in Pembina county, North Dakota, and in Washington, District of O'olumbia. They lived together in North Dakota for some nine years. There Eobert homesteaded some land, lie acquired the half section of land herein involved. lie and Maggie left Pembina county about 1885. Prior to that time he and Maggie deeded this land to Charles D. Strong, a resident of St. Paul and the father of Eobert J. Strong.
On August 21st, 1886, Charles D. Strong made the will concerned and on January 5th, 1889, a codicil thereto. On January 7th, 1890, Charles D. Strong died at St. Paul, Minnesota. In December, 1891, Eobert secured another divorce from Maggie in the district court of Eamsey county, Minnesota. This was done, pursuant to Eobert’s testimony, by reason of his father’s desire. Later, in Washington, District Columbia, Eobert continued to have 'relations with Maggie until 1902 when they separated. In January, 1903, at Washington, District of Columbia, Eobert married the appellant, Ella C. Strong. She was the wife of Eobert at the time of his decease. There are no surviving children as the issue of Eobert’s marriages. Charles D. Strong at the time of his death possessed considerable property. This consisted of notes, sioclc, real estate in Minnesota, in Pembina county, North Dakota, in Manitoba and in Massachusetts. lie left surviving him a widow and several children. Eobert wras the eldest.
The testator devised to the wife a life estate in his homestead at St. Paul, Minnesota, and certain other property and $5,000. He bequeathed to the St. Paul Trust Company, as trustee, all his stock in the Strong-Ilackett Hardware Company, to be held in trust by the trustee for the life of his wife for certain particular uses and trusts. He directed the
In the codicil it is recited that the testator had disposed of all its
This will ivas admitted to probate in, Ramsey county, Minnesota, on February 10th, 1890. The St. Paul Trust Company, named in the will as executor, was duly appointed by the probate court of Ramsey county as the executor. It accepted the trust and qualified as trustee. On February 28th, 1891, through an interlocutory decree entered in the probate court of Ramsey county, Minnesota, certain trusts designated in the will were vested in the St. Paul Trust Company as trustee. In particular, the land involved herein was assigned and awarded to the trust company, as trustee, upon and for the particular uses, purposes, and trusts which are created and specified in the 12th subdivision of the 'will; likewise, the Pembina city property, mentioned in the 13th subdivision of the will, was assigned and awarded to the trust company.
On February 2'Ttli, 1892, authenticated copies of this last will and codicil were proved, allowed, and admitted to probate in the county court of Pembina county, North Dakota. In this county court, TV. J. Ilneeshaw was ai>pointed administrator of the estate of Charles D. Strong with the will annexed.
On February 13th, 1893, a final decree was entered in this county court of Pembina county. It recited payment of all expenses of the estate and of administration; the payment of all debts existing against the deceased; that the estate had been fully administered. It recited the residue of -the estate existing, namely, the Pembina city property and the lands involved herein. It vested title thereto in the St. Paul Trust Company, as trustee and in trust, according to the terms, conditions, and trust named in the last will of Charles D. Strong, deceased, concerning which the St. Paul Trust 'Company had qualified as foreign executor and trustee in the administration and probate of such will in the probate court of Ramsey county.
From the record it appears that the St. Paul Trust Company, as trustee, did collect some rentals or income from the Pembina city property and these lands involved herein. In May, 1896, it collected $27 from its agent Kneeshaw for a grass privilege upon these lands.
From the four corners of the record it does appear that the St. Paul Trust Company, as trustee, proceeded to collect the assets of the estate and thereafter, to invest the same in St. Paul real estate. Apparently thesq investments were made at a time when real estate in St. Paul was buoyant, for tremendous losses afterwards occurred when deflation in the realty values there came. The record is not complete concerning all of these transactions but it appears that, in April, 1900, the St. Paul Trust Company instituted an action in equity against the beneficiaries of the trusts named in the will of Charles D. Strong. . The complaint therein alleges that the trustee accepted several trusts named in the interlocutory decree of February, 1891; entered upon the discharge thereof and ever since has been acting as such trustee; that in the execution of the trust it has collected moneys, made divers expenditures, and invested and reinvested trust funds; that an -accounting is rendered, hut the same does trot cover nor include receipts or account of the trusts
Prior to this time, in February, ID01, Robert J. and Naggie executed a transfer of all of their interests in the estate .of Charles D. Strong to Freeman P. Strong for a recited consideration of $1,000 and other valuable considerations; also, they made a quitclaim deed to Freeman P. Strong of the land involved herein. Freeman P. Strong testiiied that he paid $100 in cash and gave a note for $900 which afterwards matured and was paid by him; that he took up and paid "a note for Robert amounting to $224; that he advised his brother when he was in Washington, at the time he got these deeds or transfers, about his tax title. Robert J. testified, on the contrary, that he did not receive any consideration for this deed; that he represented to him when he visited him in February, 1901, that he had a tax title on these two farms; that he was the absolute owner of the property and had been recognized in court as such; that in order to handle this property as a separate matter from the St. Paul Trust Company, as trustee, he wanted from Robert a quitclaim deed; that he signed a deed, absolutely in blank excepting that the names were signed and the jurat added; that Freeman agreed to send him a written agreement to show that he would hold this property and protect his interests during his lifetime. lie further testified that in June, 1900, Freeman P. Strong told him in Washington that he expected to be trustee; that he, Robert, acquiesced in his being trus
In January, 1902, the St. Paul Trust Company instituted an action against Robert J., Maggie, and Freeman P. Strong. The complaint concerns the 12th subdivision of the will. It alleges the trusts created thereunder, the acceptance thereof by the trustee and its entering upon the discharge of its duties as trustee. It further alleges that title vested in such trustee concerning the land involved herein, pursuant to an interlocutory decree in the probate court of Ramsey county made in February, 1891, and pursuant to a decree in the county court of Pembina county in February, 1893. That in May, 1896, the trustee through one Kneeshaw, its agent, collected grass privilege rentals for the use of the real estate in the sum of $27; that the trustee by reason of want of funds had no money to pay the taxes levied and assessed upon such real estate for the years 1891, 1892, 1893, and 1894; that Freeman P. Strong claims to have become an owner of such real estate by virtue of tax sales and has ever since been in possession thereof; that when the trust became vested in the trastee under the interlocutory decree, the trastee requested Robert J. to take possession and occupy the land as he was authorized to do under the will, but he has always refused so to do; that it advised Robert of the unpaid taxes upon the land and of the sales thereof and of the time within which the same could be redeemed and demanded that he should pay and redeem the same or furnish the trustee with money necessary so to do; that Robert neglected so to do. The complaint demanded that Freeman be required to disclose his right, title, and interest in the property and that such title be adjudged and determined by the court; that the plaintiff be
The record discloses correspondence between Robert and Freeman and between Robert and an attorney concerning this action arid concerning the estate. In March, 1902, this attorney wrote Robert that there were two suits by the trust company brought concerning the North Dakota property; that he was acting as Freeman’s attorney and that Freeman had become the owner of the farms; that it would not be possible for him to represent Robert in such action but as to the other action, concerning the city property, he did not see any antagonisni between Freeman’s interest and Robert’s interest and he could appear for him. This attorney also wrote Robert that Freeman had called, had seen this letter and approved of it. Then Freeman, a few days later, (March 4th, 1902) wrote Robert to the effect that, as to the farm lands, he did not see that Robert could do anything because it would cost him more than ho would get out of it; that the title to the land was in him through his tax d..ed and the deed from Robert and Maggie, but that if he wanted to spend any money on an attorney he would get an attorney for him. In this action Freeman interposed an answer. It alleged that the trust company accepted the trust mentioned in the complaint and entered upon its duties as trustee; that it continued to so act until January 4th, 1902, when, in an action pending between plaintiff and the devisees, plaintiff tendered its resignation as trustee which included the trust relative to the subject-matter of this suit, and that on January Oth, 1902, the district court accepted such resignation and appointed defendant trustee of such trusts; that on January Yth, 1902, this defendant qualified and became and has ever since been the trustee of all existing trusts created under and by virtue of the last will of Charles D. Strong. lie admits that the taxes became delinquent upon the property for the years 1891, 1892, 1893, and 1894, and he alleges that he personally became the owner of the property by virtue of tax sales and ever since has been and is now the owner, personally; that he became such owner prior to January 1st, 1900. He further alleges that tinder date of February 11th, 1901, Robert J. and Maggie executed
After hearing in April, 1902, the district court of Ramsey county, Minnesota, found that the trust company accepted the trust concerning the land involved in 1891 and entered upon the discharge of its duties; that by final decree in the county court of Pembina county, North Dakota, the real estate was awarded to the trust company as trustee; that the trustee received no income from this property excepting $27 collected for grass rentals through its agent, on May 19th, 1896; that Freeman P. Strong became owner by virtue of taxes paid and has since been in possession; that the trustee requested Robert to take possession of the land but he refused so to do; that also the trustee advised Robert during the years 1891 to 1895 to pay the taxes but he refused to pay such taxes or to advance any moneys that, in the action of the plaintiff against Abigail Spur and other devisees, the plaintiff trust company tendered its resignation as trustee including the trust relative to the subject-matter of this suit under the 12th subdivision of the. will; that on January Gth, 1902, the court accepted the resignation and appointed Freeman P. Strong as trustee in place of the trust company; that on January 7th, 1902, Freeman P. Strong qualified, and since such time has become and now is trustee of all the existing trusts including the trust involved in such action. The court ordered that the plaintiff was entitled to judgment, releasing it, as trustee, from further liability and as trustee under the 12th subdivision of the will, and that Freeman P. Strong was the owner of the land described in the complaint. Pursuant thereto judgment was entered on May 29th, 1902. In such action Robert and Maggie did not appear.
From the record it also appears that another action was brought by Ellen A. Strong as administratrix of the estate of Charles IT. Strong and personally, against Freeman P. Strong individually and as trustee, against Robert J. and Maggie, and others, all in the district court of Ramsey county, Minnesota, in the year 1905. In that action the resignation of the St. Paul Trust Company as trustee and the appointment of Freeman P. Strong as trustee in its place on January 7th, 1902, is alleged. It alleges that Freeman has administered various trusts. These certain trusts concern the devise of shares of stock, afterwards converted, into cash, aggregating about $17,500. It alleges that Freeman, as
The record does ' not disclose what action was taken by the court in this case.
The record further discloses still another action pending in the district court of Ramsey county, Minnesota, wherein Charles S., Ellen A., and Freeman P. Strong are plaintiffs and Robert J., Maggie, Cyrus I)., and Mai-y J. Strong are defendants. The record shows- only an order
Decision,
The Title under the Trust. Concerning the farm lands involved, the will of Charles D. Strong, in the 12th subdivision, created an express trust. Comp. Laws, 1913, §§ 5364, 5367. It did not create a use which the statute of uses, as codified, would execute. Comp. Laws, 1913, §§ 5360, 5363; 26 R. C. L. 1176; 3 Pom. Eq. Jur. 3d ed. § 984; Smith v. Security Loan & T. Co. 8 N. D. 451, 454, 79 N. W. 981; Dalrymple v. Security Loan & T. Co. 9 N. D. 306, 315, 83 N. W. 245. It devised the title in fee to the St. Paul Trust Company, to hold and administer as an active trustee. As such, the duty was imposed to collect the rentals and income, to pay the taxes and other necessary expenses, and to pay over the net rentals and income to one or more persons in its judgment and discretion. It possessed the power of sale after the death of Robert and the duty thereupon to pay over the net
Thus, it may be seen that no estate was devised to Robert, to his prospective widow or children, either in praesenti or in futuro. The cestui que trusts, the beneficiaries, were ascertainable pursuant to and subject to the exercise of a power and a duty imposed upon the trustee, akin to a power of appointment coupled with the trust imposed. Perry, Trusts, 6th ed. § 251. The object of the trust, the benefits to be derived by a class of proposed beneficiaries, did not create any equitable estate in the land for any person or class of the proposed beneficiaries but simply the right, subject to the discretion of the trustee, to receive out of the corpus of moneys receiyed from income, rentals, or sale, an allotment thereof. This was a mere right, not an estate for the class of beneficiaries. Comp. Laws, 1913, § 5373; 39 Cyc. 43, 76; Pom. Eq. Jur. 3d ed. § 991; 26 R. C. L. 1176, 1258, 1262; De Haven v. Sherman, 131 Ill. 115, 6 L.R.A. 745, 22 N. E. 711; note in 37 L.R.A.(N.S.) 400; Perry, Trusts 6th ed. § 307.
This devise of title to such lands, was confirmed in the probate court of Ramsey comity, Minnesota, by the probate and allowance of the will and by the interlocutory decree of such court in February, 1892, appointing the St. Paul Trust Company as trustee, and vesting the title of the lands in such trustee, subject to and upon the trusts imposed. Such probate court had jurisdiction so to do concerning the trust involved by reason of its jurisdiction over the will and the parties. Perry, Trust, 6th ed. § 71; 26 R. C. L. 1359. It was further confirmed by the final decree rendered in the county court of Pembina county, North Dakota, specifically vesting title in the St. Paul Trust Company, as trustee, subject to the trust imposed under the conditions of the will. See Penfield v. Tower, 1 N. D. 216, 46 N. W. 413. The St. Paul Trust Company accepted and qualified for the trust imposed. It entered upon the performance of its duties as trustee. It became vested with the title to the lands as an active trustee for the purposes of that trust.
Rut the tax sale occurred on December 6th, 1892. At that time, the then existing law (Laws 1890, § 70, chap. 132) provided:
‘‘The auditor shall sell by public vendue each piece or parcel of land separately in the order in which they are described in the delinquent list returned and by the description therein; but if the sum bid for any piece or parcel shall not be paid before the sale closes, he shall again oiler such piece or parcel for sale; he shall state the amount for which each piece or parcel is to be sold, and shall then offer the same in foe to the highest bidder, who shall bid not less than the amount for which the same is to be sold. Tf no bidder shall bid an amount equal to that for which the piece or parcel is to be sold, then he shall bid in the same for the state at such an amount.”
At this tax sale, one C. W. Moore was the purchaser of the lands. In 3891 this law of 1890 was supplemented by providing for a statutory form of tax deed in conformity therewith. Laws 1891, § 7, chap. 100. This law of 1890 repealed the prior existing law which provided for a method of sale conforming to the recitals in the tax deeds involved. Terr. Code 1887, § 1622. The Code of 1895 restored the law of 1887 and repealed this law of 1890. Rev. Codes, 1895, § 1257.
Accordingly, it is apparent from the recitals in the tax deeds that the auditor did not follow the method of sale required by the then existing law. Hence, the tax deeds show on their face that they are void. Youker v. Hobart, 17 N. D. 296, 115 N. W. 839; Murphy v. Wilson, 37 N. D. 300, 163 N. W. 820, Ann. Cas. 1918E, 1101. Those recitals in the tax deeds, though following the statutory form prescribed at the time of their issuance, show an illegal tax sale and, hence, the tax deeds, issued thereupon, to be void. Reckett v. Knight, 16 S. D. 395, 92 N. W. 1077; King v. Lane, 21 S. D. 101, 110 N. W. 37. Such tax deeds, void on their face, did not operate to set in motion the statute of limitations: Rev. Codes, 1895, § 1269. Hegar v. De Groat, 3 N. D.
The Deed and the Transfer from Robert to Freeman. The quitclaim deed and the transfer made by Robert and Maggie to Freeman on February 11th, 1901, conveyed, if anything, only such rights, interests, title, or estate as Robert possessed. Certainly, so far as these lands are concerned, they did not convey nor transfer the title and estate of the trust company, nor any inchoate rights of Robert’s prospective widow or children, pursuant to the will and trust.
Concerning these lands, the only surviving beneficiary of the trust imposed thereon is the appellant, the widow of Robert. Her rights are measured by the terms of the trust pursuant to the will, not by her rights in the estate of her deceased husband. '
It is wholly unnecessary to determine the validity of this deed and transfer as affecting these lands. See § 5377, Comp. Laws 1913. It is evident that whatever rights Robert possessed, whether termed a right, a title, or an estate, in any event, expired with his death. Such rights, whatever they were or are, could not and did not affect the title of the trustee or the rights of the appellant, the widow of Robert.
The Minnesota Gases and Decisions. The probate court of Ramsey county, Minnesota, had jurisdiction to allow and probate the will of Charles D. Strong, a resident of St. Paul at the time of his decease. 40 Cyc. 1245. Most of the property of the deceased was situated in Minnesota. Some property was situated in other states and some in a foreign country.
This probate court, pursuant to the probate of the will and the inter-, locutory decree made in 1891, had jurisdiction to appoint the St. Paul Trust Company, as executor, and to designate it as trustee pursuant to the terms of the will. At least its jurisdiction comprehended the right to appoint the executor, to supervise such executor during the course of administration, and to ascertain the devisees. Farnham v. Thompson, 34 Minn. 330, 336, 57 Am. Rep. 59, 26 N. W. 9; State ex rel. Martin v. Ueland, 30 Minn. 277, 282, 15 N. W. 245; Bengtsson v. Johnson, 75 Minn. 321, 324, 326, 78 N. W. 3. See 23 C. J. 1010; Pom. Eq. Jur. 4th cd. §§ 156, 348, p. 2147. The county court of Pem-bina county likewise had jurisdiction to allow and probate the will and
Accordingly, it sufficiently appears, from the record, that the courts of Minnesota had jurisdiction over the parties, including the trustee,
It also appears that about the same time another action was instituted or contemplated in the district court of Minnesota concerning the administration of tho trust as it affected the Pembina city property. What happened with reference to this contemplated action, the record does not disclose; but it further appears that in 1905 another action was instituted in the district court of Minnesota that concerned the trusteeship of Freeman P. Strong and his administration thereof. Under the specific allegations made in that action it concerned administration of the trust involving tho real estate in Pembina city, North Dakota. In that action Freeman P. Strong, as trustee and individually, admitted that he was the duly appointed and qualified trustee of his father’s estate, so appointed by the court. He submitted a report as trustee, requested its allowance and the acceptance of his resignation as trustee of the Pembina city property. In his account attached, it appears that he collected moneys as trustee concerning this Pembina city property, from 1902 to 1904. What finally happened in this action, the record does not disclose; otherwise, the record does disclose, however, an order made in an action wherein Charles S.,* Ellen A., and Freeman P. Strong were plaintiffs and Robert., Maggie, Cyrus D., and Mary J. Strong were defendants, which allows the account of Freeman as trustee and directs that, upon the payment of certain amounts pursuant to the trust, Freeman be discharged from the trust under the 13th subdivision of the will which affects the Pembina city property.
From all of these considerations, it follows that Freeman P. Strong, in January, 1902, became a trustee for the trusts created in the will; that he qualified for, and assumed the duties of, such trustee; that at that time he did not have any title to the Pembina county lands; that the judgment of the district court of Minnesota, rendered in 1902, did not create any title in him concerning such Pembina county land; that as such trustee it was his duty to continue the trust and carry it into force and effect pursuant to the terms of the will.
The Statutes of Limitations concerning Adverse Possession. Pursuant to the considerations hereinbefore applied the statutory periods concerning adverse possession have never operated so as to devest the trustee of the title possessed in these lands pursuant to the terms of the
Conclusion.
Accordingly, it follows that an active express trust was created concerning these lands; that the title pursuant thereto was vested in the trustee; first, in the St. Paul Trust Company and, then later, in Freeman P. .Strong as trustee; that Freeman P. Strong never acquired any title individually through the tax deeds or tho deed from his brother Robert; that, otherwise, he has not acquired title through statutes of limitations; that his children, through the deed of Freeman to them, stand in the same position concerning this title as their father. It further follows that the estate of Robert J. has no title in these lands; that the right and interest of the appellant exists, not by virtue of her rights to the estate of Robert J., her husband, but by virtue of the express trust created in the will of Charles D. Strong and the action that may be taken by the trustee thereof. Accordingly, the title to the Pem-bina county lands is still vested in the trustee; in Freeman P. Strong as trustee, the successor of the St. Paul Trust Company, and in the plaintiffs as equitable trustees subject to the jurisdiction of a competent court, all for the purposes of the trust as created in the will. 39 Cyc. 373.
The trial court erred in determining the plaintiffs to be the owner of these lands. The judgment must be reversed and the cause remanded for the purpose of further proceedings, to the end that the court may enforce this express trust pursuant to the terms of the will and may