65 Minn. 124 | Minn. | 1896
William L. Mintzer died February 23, 1883, at the city of St. Paul, Minnesota, leaving a will, which was duly probated, and one John Jones, one of the executors named in the will, duly qualified as such, and entered upon the discharge of his duties, but he died about May 4, 1886, leaving the will unexecuted, and on or about June 11, 1886, this plaintiff was duly appointed by the probate court of Ramsey county as administrator de bonis non with the will annexed, and duly qualified and entered upon the discharge of its duties, and ever since has been, and now is, acting as such administrator. Mintzer left surviving him a widow, but no issue. The will has been so far executed that all the just debts and demands existing against him at the time of his death have been paid in full, and all specific legacies of money or personal property and all lawful devises of specific real estate have been paid and satisfied in full, save and except that the tenth subdivision of the will has not been executed. The tenth subdivision reads as follows:
“All the rest, residue, and remainder of my estate I give, bequeath, and devise as follows: I direct my executors to take charge of the same, collecting the rents, paying all taxes, assessments, and charges thereon, and to make report of all their doings to the probate court of Ramsey county, Minnesota, at least once a year. The balance in their hands, if anything shall remain of said rents after paying the charges aforesaid, shall be distributed to the persons entitled to the real estate as hereinafter provided. I wish this to continue during the life of my nephew, William Mintzer, son of George Mintzer, and the life of George A. Hides, provided, however, that at the expiration of ten years from my death, if either or both of said parties, William Mintzer and George A. Hicks, should be living, nevertheless the property may be sold by the executor or their successors, and the proceeds divided among my nephews and nieces hereinabove named, viz. Sarah Mintzer, daughter of Adam Mintzer (married to one Clough), George, Charles, Fred, John, Amelia, Josephine, Maggie, Charles, Charles Titus, Dr. William Titus, Almira Egbert, and the*128 children of Adam Snyder one share, except and provided that I wish one lot in Dunwell & Spencer’s addition to West St. Paul to be given and conveyed to Charles Flynn, aforesaid, his heirs and assigns; the selection of the lot to be left to my executors, but I request them to give him one of the best.”
The ten-years limitation provided for in the will for the division and distribution of the estate expired on February 23, 1893, at which time the plaintiff fully accounted to the probate court for all business and transactions performed by it in behalf of the estate, and said court, on March 13, 1893, by its decree and judgment duly made and entered in the matter of said estate, duly decreed and adjudged that there was then due and owing to this plaintiff, as such administrator, for taxes, assessments, and other lawful charges, disbursements, and expenses of administration, a balance and sum of $16,750.69 over and above all moneys by it then had and received. There was no money or personal property belonging to said estate wherewith the said balance due this administrator could be paid, and the devisees and legatees under said will, including this defendant, failed, neglected,, and refused to pay said balance, or any part thereof, and by reason thereof no final decree assigning and awarding the said estate to the persons entitled thereto was made, or could be lawfully made, in the matter of said estate in said probate court.
By reason of the nonpayment to plaintiff of such balance, it was-necessarily compelled, against its wishes, to exercise the duties- as-such administrator; and upon a subsequent accounting in said probate court it was decreed and adjudged that there was due upon said' estate to this plaintiff, as such administrator, the sum of $20,143.02. There was not, and is not now, any money or personal property belonging to said estate in the hands of this administrator, and there is no real property belonging to said estate except one small house or shánty, the rents whereof were and are nominal, and do not exceed the sum of $60 per annum, and except the homestead tract, which consists of 30 acres and s%oo of an acre, particularly described in the plaintiff’s complaint, and of which the testator died seised in fee, at which time there were valuable tenements, improvements, fences, and buildings, to wit, a dwelling 'house, barn, and outhouses thereon, and which premises, prior to the time of his decease, were occupied by the testator and his wife as a homestead, and which premises the defendant, as the widow of the testator, continued to hold as a
The unpaid taxes, costs, and penalties upon said homestead now due for the years 1891 to 1894, inclusive, amount to $2,321.91, which have not been paid by this plaintiff for want of funds. The defendant has also, ever since she became entitled to the right and use of said premises as a homestead, refused and neglected to keep the buildings, fences, and other improvements thereon situated in proper repair, and has suffered the same to become dilapidated and out of repair. The plaintiff paid said taxes upon the said estate at the written request of all persons interested therein except this defendant, first exhausting all rentals received from other premises for such purpose, and made the advances to save such estate. The reasonable market value of said homestead does not exceed $23,100, and in the present condition of the real-estate market it would not sell for a sum exceeding $10,000; and the defendant, while having ample means outside of said homestead to pay the taxes thereon and keep the same in repair, refuses and neglects to do so. The defendant still collects the rental from said homestead, which is continually depreciating in value, and is not adequate security for the taxes paid and unpaid thereon.
The relief asked is for an accounting; that the value of defendant’s life estate in the premises be ascertained; that a receiver be appointed of said premises; that the defendant be enjoined from leasing or collecting rents from said homestead; that her life estate be adjudged terminated, or her homestead right adjudged forfeited; and that the names of persons now in possession as tenants be disclosed, that they may be made parties herein.
The facts pleaded, however, do show the very strongest grounds for equitable relief. We regard the certain persons named as beneficiaries in the tenth subdivision of the will as reversioners, within the legal or equitable definition of that term. But we do not consider the abandonment of the homestead by the defendant, and her subsequent acquirement of another, at all material. She had only a life estate in the premises, and it was therefore her duty to pay all taxes properly assessed against them. This she refused or neglected to do. Upon the death of John Jones, the executor, this plaintiff was appointed administrator with the will annexed of the estate not administered. G. S. 1894, § 4453, provides that the term “executor” in this Code shall be construed to include an administrator with the will annexed. Referring again to the tenth subdivision of the will, we find that it was the duty of the executor to take charge of all the rest, residue, and remainder of the testator’s property not specifically devised, collect the rents, pay all taxes, assessments, and charges thereon, and make report to the probate court of Ramsey county at least once a year. The duties of the administrator in this respect were those of a trustee, and, whatever plaintiff did in this respect in regard to paying taxes upon the homestead, it was not as a volunteer, but performing a duty specifically enjoined by the terms of the will itself. When the defendant refused or neglected to pay the taxes for years upon the homestead, and there was danger of the premises being thereby lost to the reversioners, the homestead fell within the provision in the will, viz. “all the rest, residue, and remainder of my estate,” which it was plaintiff’s duty to save if the life tenant was guilty of not paying the taxes thereon.
The reversioners were under no obligations to pay taxes, or protect
The right of the plaintiff to be reimbursed out of the life estate does not rest upon the fact that she has abandoned it as a homestead, but upon the broader ground that, she having failed to pay the taxes thereon and to keep the same in repair, and having thereby allowed it to depreciate in value, with great danger of entire loss to the reversioners, it became the duty of the plaintiff, under the terms of the will, to discharge this duty, and for the expense so incurred it is entitled to be reimbursed out of the life estate. These taxes were paid at the request of all of the reversioners, and with the approval of the probate court; and while these facts do not constitute plaintiff’s authority for so doing, they materially aid in show
If the life tenant permits the premises to decay for want of repair, and neglects to pay the taxes, subjecting the estate to sale therefor, with accumulated costs and penalties, it must diminish the value of the estate, and thus there is a resulting, lasting damage to the freehold or inheritance, and this constitutes waste. Stetson v. Day, 51 Me. 434; Phelan v. Boylan, supra; 1 Washburn, Real Prop. 107. But, although the defendant has been guilty of permissive waste, we do not think that it is such waste as would constitute an absolute forfeiture of the estate, and therefore the action does not come within the provisions of G. S. 1894, §§ 5882, 5883. But the facts alleged constitute substantial ground for relief in equity, and entitle the plaintiff to protect the inheritance, and, if possible, have it restored to the condition it would be in if the defendant had not been guilty of wrongdoing.
Our conclusion is that, while the plaintiff is not a remainder-man or reversioner, so as to entitle it to maintain a common-law action of waste, yet it is entitled to maintain this action for equitable relief; to have a receiver appointed, as prayed for in the complaint; to have an accounting of all rentals received by defendant and taxes paid by plaintiff, as well as the amount of unpaid taxes ascertained, and of the amount necessary to make repairs to save the property
The order sustaining the demurrer is overruled, and the cause remanded, with instructions to the trial court to proceed in the matter not inconsistently with the views herein expressed.