99 Minn. 236 | Minn. | 1906
This case was before the court on a former appeal (94 Minn. 433, 103 N. W. 217), where the facts are fully stated. While additional evidence was presented on the second trial, it is not substantially or materially different from what it was when the case was here before, and a majority of the court are of. opinion that the decision then made should be adhered to and for the reasons stated in the former opinion. No reversible errors are shown on this appeal. The trial court refused to find facts which would estop Turner from impeaching the purchase of the property by Fryberger or amount to a ratification of his act in doing so. The evidence is not conclusive in favor of the proposed findings, and within the rule applicable to such cases, the action of the court in refusing them must be sustained. Mann v. Lamb, 83 Minn. 14, 85 N. W. 827.
The court was not requested to find “one way or the other” upon the proposed facts, but to find them as expressly stated in the motion papers. Appellant was not entitled to such findings absolutely, unless the evidence was conclusive upon the subject; at least, the refusal of the court to find them is not reversible error, the evidence being conflicting. Nor was there error in the action of the court fixing the amount of the compensation of appellant and his attorney. The administrator’s account was before the court for settlement, and his compensation and that of his attorney were matters properly before it for adjustment.
Order affirmed.
A reargument having been ordered, the following opinion was filed on October 19, 1906.
A reargument was ordered in this case, and upon further consideration we have come to the conclusion that the order from which the appeal was taken must be reversed, and a new trial granted. The facts upon which the controversy arose are fully stated in the former opinion. 94 Minn. 433, 103 N. W. 217.
The case was tried in the district court upon the record brought up from the probate court and without formal pleadings. It is apparent
In Buell v. Buckingham, 16 Iowa, 284, 85 Am. Dec. 516, it is said: “A purchase of property by a trustee of his cestui que trust is not void, in equity, but is voidable. Such sale will be set aside for fraud or upon a very slight showing of bad faith; but when it is clear that the cestui que trust intended that the trustee should buy, and there-is no fraud, no concealment, and no advantage taken by the trustee,. * * * it will be upheld and enforced.” In Vreeland v. Van Horn, 17 N. J. Eq. 137, Chancellor Green said: “It does not lie in the mouth-of a cestui que trust * * * to complain of acts as breaches of trust which were occasioned by his own neglect.” In Crutchfield! v. Haynes, 14 Ala. 49, the court said: “If a cestui que trust assents to the violation of the duties of the trustee, his interest in the trust-estate must be subjected to the protection of the trustee.” In Hammond v. Hopkins, 143 U. S. 224, 12 Sup. Ct. 418, 36 L. Ed. 134, it was held that, if a cestui que trust acquiesces in the sale of the trust property to the trustee, he cannot have the transaction set aside. See also Butterfield v. Cowing, 112 N. Y. 486, 20 N. E. 369; In re Niles, 113 N. Y. 547, 21 N. E. 687; 1 Perry, Trusts, § 467; 28 Am. & Eng. Enc. (2d Ed.) 1123, et seq.
Hence if Turner consented that Harrison E. Eryberger might purchase the outstanding estate, or with knowledge of the facts, after the purchase, acquiesced in what had been done, and sought to avail himself of the results of the transaction, he was not in a position to question its propriety or legality. We are strongly impressed by the evidence which tends to show that Turner knew what was being done- and assented to it, and that after the purchase had been made by
The statute requires the trial court to make findings upon all the issues in the case, and if there is a failure to find on all the material issues raised by the pleadings, or litigated by consent, the remedy is by a motion for additional findings. Dunnell, Minn. Pr. § 526, and cases there cited. Such a motion was made by the administrator in this case, and the court declined to make the findings asked for. It is true that the refusal to make specific findings as requested is not necessarily a refusal to find on the issue involved therein. The court may refuse to find as requested, and find otherwise on its own motion. But the duty to find on all the issues is imposed upon the court by the statute, and if this is not done there is a mistrial, in cases where the attention of the court is called to such omission. A motion for particular findings as to material issues on which the court has failed to make findings requires the court to make findings on such issues as he may find the facts to be, although the motion to make the particular findings is denied. If proper findings, directed to an issue which is presented by the pleadings or which was by consent litigated, are asked for, it is error to refuse them if they rest upon undisputed evidence, or the evidence to the contrary is so slight that a contrary finding could not stand.
As this case was tried, the court should have found specifically upon the issue of the consent or acquiescence of Turner in the transaction which involved the purchase of the life estate by the attorney for the administrator, and the refusal to find as the appellant requested did not relieve the court of the duty to make a proper finding.
The administrator’s final account which was filed in the probate court claimed compensation for the services of the administrator and his attorney down to the time of the filing of the account. The
The value of the personal services of said William O. Fryberger as administrator of said estate, up to and including all proceedings in this court and in said probate court relating to his said final account, is the sum of $65, and no more; and the value of the services of said Harrison F. Fryberger as attorney for said estate and for said administrator, up to July, 1905, including .proceedings in said probate court and this court, is the sum of $165, and no more.
As a conclusion of law the court found that
No further costs or fees of any kind should be charged or allowed against said estate by reason of any proceedings relating to the final account of said administrator, either in the probate court or in this court, for the personal services of said administrator, or his said attorney.
. It was error to attempt to determine the right of the administrator or his attorney to compensation for services rendered after the case was appealed. The matter never had been before the probate court, and no issue of this character was presented in the district court. The evidence was confined to the value of the' services' of the adminis
The order appealed from is therefore reversed, and a new trial is granted.