Beliveau v. Beliveau
| Decision Date | 21 April 1944 |
| Docket Number | No. 33661.,33661. |
| Citation | 217 Minn. 235,14 N.W.2d 360 |
| Parties | BELIVEAU et al. v. BELIVEAU et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Sibley County; Joseph J. Moriarty, Judge.
Action by Extras Raymond Beliveau and others against Josephine Beliveau and another involving right of remainderman where life tenant was given power of disposition and right to use proceeds for necessary comfort and support. From an adverse judgment, the named defendant appeals.
Affirmed.
Arthur A. Stewart, of St. Paul, for appellant.
Everett L. Young, of Gaylord, and Streissguth & Gislason, of New Ulm, for respondents.
This case is here on appeal from the judgment. The findings of fact are not challenged, but the conclusions of law and the judgment are.
The case was tried on February 15, 1943. For reasons to be stated later, the conclusions of law and the judgment are to be viewed in the light of the facts as they appeared at that time.
By the terms of the will of her late husband, Alizam Beliveau, and the final decree of distribution of the probate court assigning the decedent's property pursuant thereto, the defendant Josephine Beliveau took a life estate in all of Alizam's property coupled with a power of sale and disposition and the right to use the proceeds of any sale for her comfort and support, with remainder over in specified portions to his brothers and sister, the plaintiffs. The will contained a provision that in case the profits, rents, and income from his property should be "sufficient to properly care for, support and maintain my said wife, then I prefer that my real estate be kept intact."
Alizam died on June 11, 1935, leaving about 320 acres of farm land in Sibley county, on which there were farm buildings and a dwelling house, some personal property consisting of household goods and furnishings, almost $300 in cash, some tools, chickens, a cow, and other items. Eighty acres of the land constituted decedent's homestead. While the estate was in administration, the executor, under "proper authority" from the probate court, placed a mortgage for $2,000 upon the land other than the homestead.
At the time of trial, Josephine was 66 years old and was unable and unwilling to care for and successfully operate the property. She had been in possession of the property continuously since her husband's death. By reason of her failure to maintain and repair the same, the buildings and fences were in a condition of serious disrepair. She failed to keep the buildings insured. Quack grass, thistle, and other foul weeds were permitted to infest and depreciate the value of the farm, which if properly managed had a rental value of about $1,100 per year, but in the condition described was only $600 to $800.
Josephine became involved in serious and expensive lawsuits over rental contracts and other matters pertaining to the management and operation of the property. On May 12, 1942, all the land except the homestead was sold under execution to one Lewis L. Anderson for $1,019.60 to satisfy a judgment recovered by him against Josephine for attorneys' fees and expenses in various lawsuits. The time to redeem from the sale was less than three months from the day of trial. She had taken no steps to effect a redemption and, so far as appears, was unable to do so.
On October 2, 1942, the land, except the homestead, was sold at mortgage foreclosure sale for Josephine's defaults in failing to pay, as required by the mortgage, interest on the mortgage debt and taxes for the year 1941 (payable in 1942) amounting to $212.08. She failed to take any steps to renew or extend the mortgage prior to the sale or to redeem therefrom afterward.
Her mismanagement of the farm was wilful misconduct in an attempt to defeat the remaindermen.
As a conclusion of law from the foregoing facts, the court decided that a trustee should be appointed to preserve the property for the life tenant and the remaindermen in accordance with the express wish of the testator, appointed a trustee to take charge of the property, and directed and empowered him to sell the property at the earliest possible date; to mortgage the property, including the homestead, pending the sale to raise funds with which to redeem from the execution and mortgage foreclosure sales and to pay the expenses of the proceedings; to rent the property and collect the rents until a sale should be made; and to do all acts necessary to preserve the estate. Upon a sale, the trustee was directed to deposit the proceeds in a bank and disburse them only upon order of the court. A distribution of the proceeds was directed as follows: (1) payment of any taxes due and payable upon the farm; (2) payment and satisfaction of the mortgage; (3) payment and satisfaction of the judgment of the defendant Anderson, unless said judgment was otherwise paid; (4) payment of the costs of the action and the attorney's fees allowed, and the fees of the trustee for services rendered by him under the direction of the court; (5) for the support and comfort of the defendant Josephine Beliveau during her lifetime; and (6) at her death, any remaining portion of said proceeds shall be paid to the plaintiffs in accordance with the will of Alizam Beliveau.
Allowances of attorneys' fees were made in the sum of $300 to plaintiffs' attorneys and $200 to Josephine's attorney, which the latter declined lest it prejudice her right to appeal.
Pursuant to the authority conferred by the findings and conclusions to mortgage the land or so much thereof as should be necessary for the purpose of redeeming the land from the execution and mortgage foreclosure sales, the trustee, prior to judgment, on March 25, 1943, mortgaged the land, including the homestead, in the amount of $4,800 to the Sibley County Bank of Henderson.
The proceeds were disbursed as follows: $2,291.95 to redeem from the mortgage foreclosure sale; $1,082.78 to redeem from the sale under execution to Anderson; $434.91 to pay taxes for the years 1941 and 1942; $300 to plaintiffs' attorneys; $323.05 expenses in connection with loan, of which $150 was for attorneys' fees in an action brought to quiet title; and $225 for attorneys' fees incurred by Josephine in an action in which she had been involved. Apparently the trustee had $142.31 on hand after making the disbursements in question. The court confirmed the mortgage and the disbursement of the proceeds. Judgment was entered after the order confirming the mortgage. Included therein were the provisions in the findings and conclusions authorizing the trustee to mortgage the land.
The defendant Josephine Beliveau appeals. She claims that the court erred: (1) in appointing a trustee of all the property, including the homestead; (2) in authorizing the trustee to mortgage and sell the homestead; (3) in directing the trustee to hold the proceeds of the sale and to pay the same from time to time under the direction and control of the court for the widow's support, needs, and comfort; and (4) in allowing attorneys' fees.
The life tenant concedes that it would be for her best interests to have the property other than the homestead sold and to mortgage it pending the sale to raise funds to save it from being lost under the execution and mortgage foreclosure sales; but she strenuously objects to having the homestead sold or mortgaged and the proceeds of the sale, if there be one, held and administered by a trustee. Her argument in support of these views is that under her powers to sell and encroach on the corpus she has an absolute right of disposition of the land and the proceeds of any sale, and that as an incident thereof the testator intended to confide in her the entire management of his estate, including discretion to decide if there should be a sale in whole or in part of the lands and to what extent she should use the proceeds of any sale for her needs. She urges that testator's failure to create an express trust confirms her position and that the judicial appointment of a trustee with the powers mentioned denies her the rights the testator intended she should have under the will.
1. We cannot agree with appellant's contentions. She took a life estate coupled with a power to sell and to use the proceeds of any sale, including the right of encroachment upon the principal, for the specified purpose of her necessary comfort and support. Under Minn.St. 1941, § 502.09, Mason St. 1927, § 8115*, in a case where, as here, there is no express trust, a grant or devise of land for life with power of disposition with remainder over creates, so far as the life tenant and the remaindermen are concerned, a conventional life estate coupled with a power of disposition with a remainder over, and, so far as creditors, purchasers, and encumbrancers of the life tenant are concerned, a fee simple. In other words, the statute does not convert a life estate coupled with a power of disposition into a fee simple estate for all purposes, but only with respect to the rights of creditors, purchasers, and encumbrancers of the life tenant. Larson v. Mardaus, 172 Minn. 48, 215 N.W. 196; 33 Am.Jur., Life Estates, Remainders, etc., §§ 27, 31; Restatement, Property, § 111. Our statute was copied from the New York statute. Ashton v. Great Northern Ry. Co., 78 Minn. 201, 80 N.W. 963. In Matter of Estate of Davies, 242 N.Y. 196, 201, 151 N.E. 205, 206, the court pointed out, with respect to the rights of creditors, that the language was that the particular estate was not merely assimilated to a fee but, in the words of the statute, was "changed into a fee absolute," and consequently the estate of the debtor was to be treated as a fee absolute, and said (242 N.Y. 202, 151 N.E. 206):
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