155 Minn. 46 | Minn. | 1923
The will of Charlotte C. Hall was admitted to probate May 20, 1021. Her husband, Lucius F. Hall, had consented to the will in writing, but, when it was presented for probate, filed a written repudiation of such consent, and a notice that he renounced and refused to accept the provision made for him in the will, and, in lieu thereof, elected to take the share of the estate allowed him by the statute. Immediately after the will had been admitted to probate, he filed a second instrument to the same effect. The executor made a motion to strike these documents from the files. As a result of the hearing upon this motion, the probate court made findings of fact and conclusions of law, and adjudged that the motion be denied, and that the husband should “have and take his distributive share of the estate * * * under the provisions of the statutes of this state, the same as if said deceased had died intestate, in lieu of the provisions made for him by * * * said will.”
The executor appealed to the district court. That court dismissed the appeal on the ground that the order or judgment was not appeal-able. The executor appealed to this court from the order of dismissal. The sole question presented is whether an appeal lies from the order of the probate court.
Appellant concedes that the order is not appealable, unless it comes within the provisions of subdivision 5 of section 7490, CL S. 1918, which provides that an appeal may be taken by any party
A similar order of the jirobate court, made in a similar case, was reviewed by certiorari in State v. Probate Court Hennepin County, 129 Minn. 442, 152 N. W. 845, L. R. A. 1915E, 815. Another similar order of the probate court, made in a similar case, was reviewed by appeal in Lindquist v. Security L. & T. Co. 142 Minn. 271, 172 N. W. 121. The question whether the order was reviewable by the procedure adopted! was not raised or considered in either of those cases.
Appellant is correct in asserting that the order in question is not reviewable by certiorari, for the reason that it is only an interlocutory order which does not finally determine the rights of any of the parties. State ex rel. Krey v. Probate Court, 51 Minn. 241, 53 N. W. 463; State ex rel. Smith v. Probate Court, 72 Minn. 434, 75 N. W. 700; State ex rel. Kelly v. District Court, 83 Minn. 58, 85 N. W. 917.
The statutory provision relied upon allows an appeal from specified orders or decrees in respect to personal property; it does not allow an appeal from orders or decrees in respect to real estate. State v. Willrich, 72 Minn. 165, 75 N. W. 123. The estate in question consists of the family homestead and of a considerable amount of personal property. Appellant’s contention that the rights of respondent in the homestead would be the same under the will as under the statute, and that the order in question should, for that reason, be deemed to affect only personal property, cannot be sustained. As the order sets aside the provision of the will, and leaves the rights of respondent in the real estate to be determined by the laws of descent, we could hardly say that it did not involve real estate, even if the rights given by the will were the same as those given by the statute. But they are not the same. The statute gives the surviving spouse a life estate in the homestead which he can use, sell or encumber as he pleases. The will gives the homestead to the daughter of a prior marriage with merely a provision that the husband “shall have the exclusive control” of it during his lifetime.
The order does not purport to assign or distribute the property or any part thereof. It merely decides that respondent’s rights are to be determined by the statute and not by the will. It does not give respondent tbe right to any specific property, or to any specific part or amount of the property. A further order or decree is necessary to carry it into effect. Before respondent will be in position to demand or receive any part of the property, a further order or decree must be made assigning it to him. Dunnell, Probate Law §§ 1060, 1087. It is the general rule that no appeal lies from the action of a court which requires a subsequent order or judgment to give it effect. The appeal should be taken from the order or judgment which gives effect to the conclusion reached by the court, not from what is, in effect, its findings of fact or conclusions of law. We think that respondent’s claim to a distributive share of the personal property is not “allowed” within the meaning of the statute, until an order or decree is made under which he is entitled to demand or receive it, or some part of it.
Respondent claims the distributive share of the property given to a surviving spouse by the statute. Tbe interlocutory order decreeing that he is entitled to such share may be reviewed, and his right to it be determined, on an appeal from the final decree. Knutson v. Krook, 111 Minn. 352, 127 N. W. 11, 29 Ann. Cas. 852. Also on an appeal from a decree making a partial distribution, if one should be made.
We concur in the conclusion reached by the learned trial court, and its order is affirmed.
