Carey v. Brown

• Decision Date: 29 March 1935
• Docket Number: No. 29895.,29895.
• Citation: 260 N.W. 320,194 Minn. 127
• Parties: CAREY et al. v. BROWN et al.
• Court: Minnesota Supreme Court

260 N.W. 320

194 Minn. 127

CAREY et al. v. BROWN et al.

No. 29895.

Supreme Court of Minnesota.

March 29, 1935.¹

On Reargument, April 26, 1935.

Appeal from District Court, Hennepin County; A. W. Selover, Judge.

Action by James M. Carey and others, as administrators of the estate of Edward Carey, deceased, against Robert D. Brown and another, as executors of the estate of Annie Carey, deceased. From a judgment setting aside a decree of distribution of the probate court in the matter of the estate of Annie Carey, deceased, James M. Carey and others, as administrators of the estate of Edward Carey, deceased, appeal.

Judgment modified, and, as so modified, affirmed.

Smith, Callahan & Carlson, of Minneapolis (Charles F. Kelly and H. Stanley Hanson, both of Minneapolis, of counsel), for appellants.

Loring & Anderson, of Minneapolis, for respondents.

JULIUS J. OLSON, Justice.

This is an appeal by the representatives of the estate of Edward Carey, deceased, from a judgment of the district court of Hennepin county setting aside a decree of distribution of the probate court of that county in the matter of the estate of Annie Carey, deceased wife of said Edward Carey.

The cause was submitted in the district court upon an agreed statement of facts consisting of 14 paragraphs to which the court added finding numbered 15 (XV). As the issues here presented are founded upon these facts, we deem it proper to quote same in full:

"I. Annie Carey, the above named decedent, died testate on the 3rd day of October, 1930; that at the time of her death she was a resident of the county of Hennepin, state of Minnesota, and a citizen of the United States.

"II. On the 9th day of October, 1930, a petition to prove the last will and testament of said Annie Carey was duly filed in the Probate Court of Hennepin County, Minnesota. Said petition was signed by Robert D. Brown and William M. Haslett, executors named in said last will and testament. That said Robert D. Brown, for a long time prior to the death of Annie Carey, acted as her financial agent and adviser.

"III. On the 3rd day of November, 1930, the Probate Court of Hennepin County, Minnesota, duly made its order allowing said will and entered its decree of Probate and order for bond and letters.

"IV. On the 5th day of November, 1930, Robert D. Brown and William M. Haslett filed their bond and oath as executors and thereupon letters testamentary were duly issued to said executors and since said date they have been and now are duly qualified and acting as executors of the estate of said Annie Carey, deceased, and that they have also been duly appointed by order of the above named court as trustees under the last will and testament of said Annie Carey, deceased, a certified copy of such order has been duly filed in the matter of the estate of Annie Carey, deceased, in the Probate Court of Hennepin County, Minnesota, said proceedings being, for convenience, referred to as file No. 39297 of the files in the office of the clerk of the Probate Court of Hennepin County, Minnesota, which file was duly offered and received in evidence together with all of the documents therein contained in accordance with the stipulated facts.

"V. Said Annie Carey died and left her surviving as her sole heir at law Edward Carey, her spouse. That no child or issue of any deceased child survived said Annie Carey.

"VI. On the 19th day of July, 1921, Edward Carey, then of the age of about fifty-eight (58) years, spouse of said Annie Carey, was duly declared insane and that on the 27th day of August 1921, the Probate Court of Hennepin County, Minnesota, duly issued its order committing the said Edward Carey to the State Hospital at Rochester, Minnesota.

"VII. On the 10th day of April, 1930, Annie Carey was duly appointed guardian of the person and estate of Edward Carey and acted in such capacity until her death. That during the period of time that the said Annie Carey was guardian of Edward Carey, the said Edward Carey was placed in the Riverview Hospital at Minneapolis by said Annie Carey and all expenses of maintenance were paid by her. Said Riverview Hospital is a private institution located in Minneapolis, Minnesota.

"VIII. On the 25th day of November, 1930, the final account of said Annie Carey, as guardian of Edward Carey, was duly filed by the executors herein named and said account was duly allowed and the sureties on her bond discharged.

"IX. On the 12th day of December, 1930, Robert D. Brown was appointed guardian of said Edward Carey, duly qualified as such and continued to act in such capacity until the death of said Edward Carey. That the said Robert D. Brown, from and after his appointment as guardian of Edward Carey, exercised control and custody of the person of said Edward Carey. Said Robert D. Brown, as guardian, from the date of his appointment as guardian to the date of the death of said Edward Carey, provided such care and comfort for said Edward Carey as had been previously arranged for him by his wife, all expenses thereof were paid out of the funds in the possession of said Robert D. Brown and William M. Haslett as executors of the estate of Annie Carey, deceased, at the guardian's request.

"X. That all proceedings had in said guardianship are referred to as file No. 15083 in the office of the clerk of the Probate Court of Hennepin County, Minnesota, which file was duly offered and received in evidence together with all documents therein contained in accordance with the stipulated facts.

"XI. The said Edward Carey died intestate on the 30th day of June, 1931, and that upon his death all funeral expenses were paid out of the funds of the estate of Annie Carey, deceased, and that the said Robert D. Brown and William M. Haslett, as executors of the estate of Annie Carey, deceased, duly entered as a credit in the final account filed by them of their administration of the estate of Annie Carey, deceased, all moneys expended by them at the request of the guardian for the care and comfort of Edward Carey from the 3rd day of October, 1930, to the 30th day of June, 1931. That by stipulation filed in the office of the clerk of the Probate Court and included in file No. 39297 the funeral expenses necessary to bury the said Edward Carey are to be allowed as a credit to the executors of the last will of Annie Carey. That the final account of said executors was duly allowed by the Probate Court by its order duly made and entered on the 11th day of January, 1932.

"XII. That after the death of said Edward Carey a petition was filed by Mary E. Miller, a sister of said Edward Carey, requesting the appointment of Robert D. Brown as administrator of the estate of Edward Carey. That on the 12th and 13th days of August, 1931, written objections to said appointment were filed by Ellen M. Machow, Eva M. Carey, Ruth Cassidy, Rose Ellen Landry, nieces of said Edward Carey; Anthony F. Carey and James M. Carey, brothers of said Edward Carey; and Kate M. Hudson, Arthur O. Carey, Grace M. Campbell and James L. Carey, nieces and nephews of said Edward Carey, and upon the hearing of said petition the said Mary E. Miller and Robert D. Brown consented to the appointment of Anthony F. Carey and James M. Carey as administrators of the estate of Edward Carey, deceased, and they are now the acting and qualified administrators of said estate.

"XIII. On the 26th day of August, 1931, Anthony F. Carey and James M. Carey, as administrators of the estate of Edward Carey, deceased, filed a petition in Probate Court of Hennepin County, Minnesota, in the matter of the estate of Annie Carey, deceased, praying for a decree of distribution assigning to said administrators such portion of the real and personal estate of said Annie Carey as said Edward Carey would have received as surviving spouse under the statutes of the state of Minnesota if the said Annie Carey had died intestate. That said petition was granted by the Probate Court on the 11th day of January, 1932, and said court entered its decree of distribution assigning to said administrators the proportion prayed for in their petition.

"XIV. That a stipulation was executed and filed by the interested parties admitting the foregoing facts.

"XV. That, for approximately nine months after the death of Annie Carey, Edward Carey, her incompetent surviving spouse, through his duly appointed and acting guardian, accepted the benefits made for him by the said testatrix and that said Edward Carey, by and through his guardian, chose to act under and adopt the provisions of the will and that such acts of said guardian were inconsistent with an intention or an election to renounce the will and constituted an election in equity to accept the provisions made for him by the said testatrix in her last will and testament."

As conclusions of law the court found:

"I. That James M. Carey and Anthony F. Carey, as administrators of the estate of Edward Carey, deceased, and as personal representatives of his estate, have no right of election and that their petition should be and is in all things denied.

"II. That the guardian of Edward Carey, incompetent spouse of Annie Carey, made an election in equity to accept the provisions of the will of Annie Carey and that said surviving spouse was bound thereby.

"III. That the Probate Court shall forthwith vacate its order heretofore made granting the said petition of the administrators of the estate of Edward Carey, deceased, and vacate its decree of distribution made therein and shall make its order assigning and distributing said estate in accordance with the provisions of the will of said testatrix.

"IV. It is ordered that said matter be and is hereby remanded to the Probate Court of Hennepin County, Minnesota, with direction to enter its order denying the said petition of James M. Carey and Anthony F. Carey, as administrators of the estate of Edward Carey, deceased, and as his personal representatives.

"V. That the said cour...