This is an appeal' from an order overruling a demurrer to the com
In September, 1911, Mrs. Irene Wilcox of Northfield in this state executed a will, and in May, 1912, a codicil to it. She bequeathed $4,000 to a trustee for the benefit of her sister, Miss Abigail H. Colby, and the residue of her estate to others whose relationship to her does not appear. Mrs. Wilcox died in May, 1919, and when the will was offered for probate Miss Colby filed objections to it, on the ground that her sister was lacking in testamentary capacity and was under undue influence when it was executed. After a hearing, but before the probate court filed its decision, Miss Colby commenced this action in the district court to obtain specific performance of a verbal agreement with her sister alleged to have been made in August, 1908, which, as set forth.in the complaint, consisted of a request by Mrs. Wilcox that Miss Colby come and live with her at Northfield; an offer or promise that if she did so Mrs. Wilcox, by her will, would devise to her her homestead in Northfield, and an acceptance of the offer by Miss Colby. The agreement is alleged to have been made under the following circumstances: Mrs. Wilcox was a childless widow, 85 years old, feeble, living alone, and needed and was desirous of the companionship of her sister, who was a vigorous woman 60 years old, a resident of Brooklyn, New York, and a music teacher by occupation. The two sisters and an aged brother were the only survivors of a family of eight girls and three boys. Mrs. Wilcox had married in 1858 and resided continuously -at Northfield thereafter.
The complaint alleges that in September, 1911, she sold her homestead for $11,000, invested $3,750 of the proceeds in a new home in Northfield and the remainder in bonds and real estate mortgages. She had the title to all this property at the time of her death, and it is the property which Miss Colby seeks to obtain by this action.
It is alleged that from August, 1908, to May, 1919, Miss Colby resided with her sister, attended to her wants, cared for her in sickness, gave her the companionship and comforts she needed, performed services for her in the home, and contributed to its upkeep from her own funds, in reliance upon the agreement made in 1908.
The demurrer was interposed on the ground that it appeared that
The proceeding in the probate court to establish the will did not involve or permit a trial of the issues which may arise in the present action. In that proceeding the due execution of the will, the testamentary capacity of the testatrix and her freedom from restraint or undue influence are the only issues for determination.
In the case at bar the subject of the contract was real property, and tne subject of the present action is the property which was purchased witn the proceeds of the sale of such real property.
In the Kleeberg case the rights of the claimant rested upon a contract which was treated as a will. Here, there was an alleged agreement to make a will, which has not been kept. The Kleeberg case has been explained or limited in its application and must be read in connection with the later decisions of this court. Svanburg v. Fosseen,
If the contract is one which may be specifically enforced, we think an action to enforce it may properly be brought in the district court.
It is next urged that plaintiff is not entitled to specific performance because she may be properly compensated for her services in money. Granting that Miss Colby’s services were in part those which are ordinarily rendered by one near relative to another when both occupy a home which they share in common, they did not consist only in doing household work which'might as well have been done by a stranger. A fair inference from the complaint is that the personal care and companionship of her sister was what Mrs. Wilcox wanted and received during the final years of her life. There is no pecuniary standard by which to measure the value to one in her situation of the daily ministrations of a near relative.
We think the facts alleged bring the case within the doctrine stated in Svanburg v. Fosseen, supra; Stellmacher v. Bruder,
Plaintiff’s canse of action is not barred by the statute of limitations. The basis for this contention is the fact that the original homestead was sold in 1911 — more than six years prior to the commencement of this action. Plaintiff’s cause of action accrued when her sister died without mahing a will in her favor; hence the statute of limitations did not begin to run until 1919. In re Hess’ Estate,
The most difficult question is whether plaintiff lost her right to enforce specific performance by reason of the sale and conveyance of the homestead. Under an executory contract for the sale of land the title in equity is vested in the vendee, 3 Dunnell, Minn. Dig. § 10045, Greenfield v. Olson,
As against a bona fide purchaser from -the vendor, the vendee cannot assert his rights under the contract. Newton v. Newton,
If the legal title to the land held in trust devolves by descent upon the heirs of the trustee, it is subject in their hands to the trust under which it was originally held. Irvine v. Campbell,
A contract to devise specific property to a particular person is enforceable. Such a disposition of property is as much the subject of an executory contract as any other. Newton v. Newton, supra. We see no reason why such a contract should not -be held to make the landowner a trustee as the holder of the legal title to he ultimately transferred by devise of the land to the other party to the contract, or why the relations between the parties in this respect at least are not strictly analogous to those of the parties to the ordinary land contract. Miss Colby might have enforced specific performance of the contract at her option, if the purchaser had acquired title with notice of her rights. She ought to have a like option as to the property substituted for the homestead upon a sale to a purchaser without notice. Equity has always recognized the right of the beneficiary of a trust to follow the trust fund or estate so long as it can be' traced and identified, and to assert his rights in it as against any one not a bona fide purchaser for value. It is not the identity of the form, but the substantial identity of the fund or property, which is the important thing, and it is immaterial that .the transmutation of the form of the property may have been effected with the acquiescence of the beneficiary of the trust. Twohy Merc. Co. v. Melbye,
In Pomeroy, Spec. Perf. Cont. § 468} it is stated that if a conveyance to a third party carries the land beyond the reach of a prior vendee, the trust which affected the land in the hands of the vendor will attach to the unpaid purchase money due to him from his grantee and to whatever
Stress is laid upon Miss Colby’s acquiescence in Mrs. Wilcox’ apparent repudiation of the agreement. The conveyance of the homestead standing alone was not an unqualified repudiation of the contract. Western Land S. Co. v. Daniels-Jones Co.
We reach the conclusion that the learned trial court properly overruled the demurrer and that the order appealed from should be and it hereby is affirmed, with leave to appellants to answer within 20 days after the filing of the remittitur in the court below.