This action was brought in the district court for Pierce county for the purpose of having a specific bequest of money declared a lien upon real estate in the hands of a residuary legatee.
Ferdinand Seegabarth died in 1883, seized of certain real estate in Pierce county, and leaving a will which was admitted to probate, and which provided, first, for the payment of his funeral charges, the expense of administering his estate, and contained this provision: “Second. I give and bequeath to my beloved wife, Emelie C. A. Seegabarth, the sum of $500 in lieu of her dower, and of any distributive share in my estate to which she would be otherwise entitled. The said $500 to be paid over to the said Emelie Seegabarth, my beloved wife, upon the arrival of my eldest son at the age of 21, provided should my Avife aforesaid marry before said eldest son arrives at the above mentioned age then this money to be paid to her by my executor provided she move off the farm now occupied by me, otherwise the money to remain in the estate until such time as my eldest son, Albert A. Seegabarth, arrive at the age of 21. It is my wish and desire that my said wife shall have the use of and profits of my farm after paying interest on mortgage and taxes which may become due from time to time, and which may be due and unpaid at the time of my decease, until such time as my son shall become of age.
“Third. I give and bequéath all the residue of my estate, real and personal, to my son Albert A. Seegabarth, to be paid to him as he becomes of age.
“In case he should not live to reach that age, then the said property to be divided among the rest of my children share and share alike, to be paid to them respectively as they become of age. In case they should die before becoming of age the said property to revert to my . beloved Avife, Emelie C. A. Seegabarth, provided that the said Al*274 bert A. Seegabarth shall pay to each of my surviving children the sum of $300 upon their becoming of age respectively.”
Ferdinand Seegabarth left as his heirs his wife, Emelie, his son, Albert, who is an appellant, and a daughter, Anna. Emelie Seegabarth elected to take under the will. In 1884 the widow of Ferdinand Seegabarth married Leo Klug. She continued to live on the farm until her death in 1897. She paid the interest and taxes as required by the will. No dower was ever assigned to her. The bequest of $500 was never paid to her. She died testate, leaving four children by her marriage with Klug. Her will, which was admitted to probate and under which Klug was administrator, contains a provision as follows: “I bequeath, devise and give away my personal and individual property as follows: The $500 coming to me from my first husband Ferdinand Seegabarth I wish divided between my children as follows.” Then follow the terms of division. A decree was rendered in the district court in favor of the administrator of Mrs. Klug, finding the bequest to her by Seegabarth a lien upon the real- estate' which passed by his will, and foreclosing this lien.
The first objection urged is that the district court did not have original jurisdiction to entertain the action. In this connection it is now well settled that the county courts have exclusive jurisdiction of all matters of probate and plenary powers for the exercise of that jurisdiction. Reischick v. Rieger,
Section 16, art. VI of the Constitution, provides: “County courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlements of estates of deceased persons, appointment of guardians, and settlement of their accounts; in all matters relating
The county court is the court having exclusive original jurisdiction over all matters of the probate of wills, the appointment of administrators and executors, the administration of estates, etc.; but this does not operate to exclude the jurisdiction of the district court in a case where the construction or consideration of a will is incidentally involved and the relief demanded does not call for a direct exercise of probate power. St. James Orphan Asylum v. Shelby,
In Andersen v. Andersen,
It is also contended that the legacy could not he held a charge against the real estate unless such intention could he gathered from the will; hut it is generally held that such intention must he inferred from the gift of a legacy followed by the gift of the residue, real and personal, in one mass, since otherwise there could he no residue of the real estate. 3 Pomeroy, Equity Jurisprudence (3d ed.) sec. 1247.
It is next urged that the suit is barred by the statute of limitations. The suit was brought less than ten years after defendant became of age, at which time the legacy was payable. It follows that, if the intent of the testator was to make the legacy a charge upon his real estate; it became a lien thereon, and the period within which it could be enforced is controlled by that section of the statute providing for the recovery of real estate, and which is ten years.
It follows that the judgment of the district court is right, and it is
Affirmed.