93 Minn. 350 | Minn. | 1904
In 1881 Willis Phelps, a resident of Springfield, Massachusetts, executed his last will and testament which made various devises to his relatives, and contained the following provision:
Authority is given to my executors to sell and dispose of any and all of my real estate in the state of Massachusetts, and to invest the proceeds.
At the time of his decease the testator left certain real estate in Minneapolis, Minnesota, and a decree of distribution was issued out of the probate court of Hennepin county in 1895, in which the court found that it was the testator’s intention to establish an active trust in all of his estate, to continue during the lives of the executors, and the survivors of them, and to vest in them the title and ownership of the real and personal estate for certain purposes; among them the following:
With power to sell, lease, manage, control, convey, mortgage, exchange and dispose of the same, or any part thereof, in such manner * * * as to said trustee and survivor or successors thereof should seem meet.
Eight years later — -in September, 1903 — plaintiffs filed a petition with the probate court praying for an amendment to the decree of distribution by striking out those portions above referred to which
It is only necessary to dispose of two of the questions raised on this appeal: Was the order of the probate court appealable? If it was an appealable order, had the time for taking such appeal expired, and did the probate court have jurisdiction to amend the. judgment?
1. The appeal was taken under subdivision 9, § 4665, G. S. 1894, which reads:
An order vacating or refusing to vacate a previous order, judgment or decree, made or rendered, alleged to have been procured by fraud, misrepresentation, or through surprise or excusable inadvertence or neglect.
“Vacating or refusing to vacate,” as used in this section, does not limit the power of the court to the complete setting aside of a previous order. This would be a narrow and unwarranted construction. The word “vacating,” as here used, means the vacating or setting aside of any part of a previous order. The reasonable construction of the section is that the court may change its former order by vacating it entirely or in part, by substituting another for it, or by vacating it in part and substituting something else in lieu thereof. Such construction is within the jurisdiction of the probate court, as defined by section 4730, which is that it may correct, modify, or amend its records to conform with the facts in the same manner as a district court. The order was appealable.
The record shows that a part of the property involved was acquired by the trustees from the proceeds of his estate, after the death of Mr. Phelps, although a part had been acquired by him prior to his death. Unquestionably, under the authority to dispose of property in Massachusetts, the trustees had the power to sell property in Massachusetts, and use the proceeds for the acquirement of property in Minnesota. In such case a legal question would arise as to their power to again dispose of the Minnesota property so purchased. In the absence of any evidence to the contrary, the probate court may have construed the will with reference to the powers of the trustees to dispose of the entire property held by the estate, and, although the construction put upon the will in-that respect by the court may have been erroneous, it is not a case where it is apparent that the power to mortgage and convey the property was inserted in the decree of distribution by a mistake or clerical error. Such being our conclusion, it follows that the probate