59 Minn. 393 | Minn. | 1894
Lead Opinion
For many years prior to his death, which occurred in 1886, and at that time, James A. Lovejoy owned and occupied, as his residence property, lots 6, 7, 8, and 9 in block 28, town site of St. Anthony Falls. The dwelling house was on lot 8, while a barn was partly on that lot and partly on lot 9. Lots 6 and 7 were used in connection with 8 and 9, but were no part of the statutory homestead. In 1885, Lovejoy made his last will and.testatment. Evidently, his estate was much more valuable when the will was made than at the time of his decease, or he labored under a delusion as to his financial condition, for it turned out that he died insolvent. The will was duly probated, and the three executors named therein were duly appointed, qualified, and entered upon the duties of their trust.
The will was quite formal, and contained provisions which, to carry out, would have required a large estate. As preliminary, the executors were directed to pay the testator’s just debts and funeral expenses as soon as practicable. He gave and devised to his wife the house and all the grounds therewith connected which were then used and occupied as a homestead (the location being given), to be held, used, and owned by her during the term of her natural life, and at her decease to descend and belong to his children, in fee, share and share alike, save as to certain restrictions, of no moment here. We need not further refer to the details of the will, except to say that by express provision the executors were given full and complete power and right to make and deliver any and all deeds and other instruments, and to do any and all acts and things, necessary for the purpose of carrying out the full intention of the same, and all and every part thereof.
In May, 1887, acting undoubtedly under the clause in the will before mentioned, the executors bargained and sold all the right, title, and interest Lovejoy had or claimed to have at his decease in lots C and 7, for $11,000, to one Pratt, and, assuming to act under the will and its probating, in due form, conveyed the property to him by deed of May 11, 1887, which was at once filed and recorded in the office of the proper register of deeds. The defendant John McDonald derives his title to the property in dispute through a deed from said Pratt, of date August 31, 1891, also promptly recorded. Before that, — March 27, 1891, — Pratt had sold and conveyed to defendant Maggie McDonald, wife of defendant John, a part of these lots, the deed being placed on record April 9,1891. Immediately upon such sale and conveyance, the purchaser and her husband commenced the erection of a dwelling house on the land purchased, and, on its completion, moved into it, and have ever since resided there.
July 31, 1890, the executors filed in the Probate Court their final account as executors and trustees of and under the will, with their petition for the allowance of said account, and for a settlement and distribution of the residue of the estate remaining in their hands; and said account showed, among other items of money received by them, the sum of $11,000 from the sale of lots 6 and 7. It also showed the disbursement of all of the money received by said executors, — about $38,000, — except" $3,4-55.37, in part payment of the debts of the decedent, including the claims of part of these plaintiffs. Due notice of the time and place of hearing said account and partition was given, and, at the hearing, plaintiffs Hannah A. and Lorin K. Lovejoy and Mrs. Winston appeared in court by counsel, and took part in the proceedings. No objection was made to that part of the final account by which it clearly appeared that lots 6 and 7 had been sold by the executors under a power as
We are of the opinion that, for the purpose of paying the debts of the decedent, — claims duly presented and allowed against the estate, — the executors were empowered to sell and convey the real property in question. It was no part of the homestead exempted by law, and consequently beyond the reach of creditors; and it was manifestly the intention of the testator that his just debts should first be paid, for he had expressly so directed at the beginning of his will. And the clause by which he conferred upon his executors full and complete power to execute and deliver deeds and other instruments, and to do all and any acts necessary for the purpose of carrying out his intention as indicated, was as much directed towards tailing steps essential to the liquidation of his indebtedness as it was to the performance of any other prescribed act. Taking the will as a whole, we are of the opinion that the sale and conveyance of the property in question for the purpose for which it was sold and conveyed by the executors was regular and valid. It was not necessary for a sale to be made by order of the Probate Court, as contended by the appellants. ■
But an affirmance of the judgment need not be placed wholly on that ground. At no time during the pendency of the probate proceedings did the plaintiffs have any beneficial interest in the property. It was subject to sale for the payment of debts, and although the proceeds of a sale found their way into the cash assets, and
Judgment affirmed.
Concurrence Opinion
(concurring). I agree with the result arrived at in the foregoing case, but am of the opinion that the power of sale in the will does not apply to the property here in dispute, or authorize the executors to sell that property. But I am of the opinion that these plaintiffs should be held estopped from claiming the property. The estate was insolvent, and they had no beneficial interest in the property. It seems to me that it is time the principles of equitable estoppel were applied to such a case as this. Equity says: This property was purchased in good faith, and you made no objection. It was not your property, and you cannot, by your laches and acquiescence, make it such.
(Opinion published 61 N. W. 320.)
