42 Minn. 270 | Minn. | 1890
The record shows that Mrs. Mary Brown, widow, the testatrix named in the pleadings, occupied, under contract of purchase, from 1869 to November 15, 1881, the town or city lot in •controversy here, described as lot 4, in Whitacre, Brisbine & Mullen’s subdivision of lots 1 and 2 of Leech’s out lots to St. Paul, and at the last-named date received a deed therefor, and on the same day executed a deed of conveyance of the east half of the north half thereof to the plaintiff, who, with the defendants Patrick and James Brown, were her sons, residing with her upon the same lot. Plaintiff built a house upon the quarter lot so conveyed to him, and has since resided therein with his family. Mary Brown died testate in the year 1884. By her will, she devised to her three sons above named the lot so conveyed to her, share and share alike. Her purpose to devise the whole lot to them is apparent from the language of the will, in which the lot is accurately described according to the plat, and as the lot on which she was then living. The will also refers to her three sons, “Patrick, James, and John, who are with me, and have •cared for me at their joint expense. It is just and proper that Patrick, John, and James shall have the lot on which I am now living, -and such is my judgment and will, and Ihave given the same to them, undivided, and it is my will that the said lot shall not be divided into ■separate parcels, but sold together, and the proceeds of the sale thereof •divided between them.” Upon the final settlement of the estate in the probate court, the lot, (4,) as above described, was assigned to Patrick, John, and James Brown, share and share alike, pursuant to the terms of the will; and the plaintiff John, with his wife, brings this action for a partition of three-quarters of the lot; that is to say, .all that part not embraced in the deed to him.
The will contemplates a disposition of the lot treated as one entire parcel undivided, and it was so adjudged by the probate court, and the decree of assignment made accordingly. Upon the facts stated, the court below held that the plaintiff John Brown was required to • elect whether he would accept the share- of the property given him -by the will, .and consent to the disposition of the entire lot as therein
Order affirmed.