Faloon v. Flannery
76 N.W. 954
Minn.
1898
Check Treatment
CANTY, J.

This action was brought to partition the land in question, plaintiff claiming to be the owner of the undivided one-seventh of it, and defendant Frank Flannery claiming to be the owner of the whole of it. The trial court found for defendant, and, from an order denying a new trial, plaintiff appeals.

Plaintiff’s father, at the time of his death, in September, 1874, was the owner of the land. He left a will, which, so far as here material, reads as follows:

“First. After all my lawful debts are paid and discharged, the residue of my real estate and personal I give and bequeath and dispose of as follows to wit: To my beloved wife, Bridget, I intrust the whole care and charge of the management of all my temporal affairs, real and personal, to have her raise up and educate my children, and, when they are of age, to divide my real estate, viz., the west half of the northwest quarter, and the southeast quarter of the northwest quarter, and the northwest quarter of the southwest quarter, in section No. 12, township 114, range 26, between them to the best advantage, as she sees fit and proper.”

*40The will was duly proved and thereafter, on October 2, 1894, the probate court made a decree assigning said real estate. The decree, so far as here material, reads as follows:

“And it further appearing that the following named person is the only person entitled to the whole of said estate by virtue of the last will and testament of Cornelius Flannery, deceased, viz., Bridget Flannery, widow of said deceased, * * * it is ordered, adjudged and decreed * * * that all and singular of the above-described real property be, and the same is hereby, assigned to,- and vested in, the said Bridget Flannery, widow, subject to the conditions and provisions of the will of Cornelius Flannery, deceased, to have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the said above-named person and her heirs and assigns forever.”

Several of the other heirs quitclaimed their interest in the land to the widow, and thereafter she deeded it to said Frank Flannery, one of said heirs.

On the authority of Tidd v. Rines, 26 Minn. 201, 2 N. W. 497, the court below held that the decree of the probate court assigning the estate to the widow is conclusive, and vested absolutely in her all interest in the land. The Tidd case does not control this case. In that case the will did not grant to the widow any power or confer on her any trust to be exercised over the real estate for the benefit of another. Therefore, if the decree of the probate court assigning the real estate to her vested anything in her, it vested in her an absolute title for her own use and benefit. But in the case at bar the will required the widow to divide the real estate in question between the testator’s children, and the decree of the probate court assigned the real estate to her subject to this provision of the will. It is perhaps true that the will did not devise this real estate to the widow, in trust or otherwise, and did not contemplate the assignment of it to her by the probate court at all. But that is now immaterial. The decree of the probate court has assigned it to her, subject to said power contained in the will, and that decree is now conclusive and controlling. Then, by the very terms of the decree, she was still required to divide this real estate between the testator’s children, “to the best advantage, as she sees fit.” Whether *41the effect would be the same if the decree did not refer to the clause requiring her to divide the real estate between his children, we need not consider.

Under the power of appointment in this will, the widow had no power to exclude any of the children. See Thrasher v. Ballard, 35 W. Va. 524, 14 S. E. 232; Knight v. Yarbrough, Gilmer, 27; Hudsons v. Hudson, 6 Munf. 352; Wright v. Wright, 41 N. J. Eq. 382, 4 Atl. 855; Lippincott v. Ridgway, 10 N. J. Eq. 164; Walsh v. Wallinger, 2 Russ. & M. 78.

The widow died April 6, 1897. According to the above authorities, she died without executing the power; and the equitable estate in an undivided one-seventh of the real estate is now in the plaintiff.

The order appealed from is therefore reversed, and the case remanded, with directions to the court below to order judgment for plaintiff.