Boeing v. Owsley
| Decision Date | 20 June 1913 |
| Docket Number | 18,094 - (18) |
| Citation | 142 N.W. 129,122 Minn. 190 |
| Parties | WILLIAM E. BOEING and Others v. FREDERICK D. OWSLEY |
| Court | Minnesota Supreme Court |
Frederick D. Owsley, having filed in the probate court for St. Louis county a renunciation of the provision made for him by his wife, Marie M. Owsley, in her last will and testament petitioned that court to determine petitioner's rights in the estate and to assign and distribute the estate to the persons entitled thereto. William E. Boeing and Rudolph Ortmann, as executors and trustees under the will, and William E. Boeing and Caroline Marie (Boeing) Poole, as heirs of the deceased and devisees under her will, filed objections in which they set up that, under the provisions of R.L. 1905 § 3652, and §§ 3683 to 3687, the petitioner was excluded from any inheritance in his wife's property that no law of the state of Virginia permitted a surviving spouse to renounce the provisions of a will of his deceased spouse; that the law of that state, where both husband and wife were domiciled at the time of her death, must govern.
The petition was heard by Gilpin, J., who made findings of fact and as conclusion of law decreed that petitioner, as surviving spouse of the decedent, was entitled in absolute fee simple to an undivided one-third interest in the lands and interests in lands of which the testator died seized. The objectors took the matter to the district court for that county, both by appeal and writ of certiorari, and in the district court it was heard by Dibell, J., who made findings of fact and ordered judgment in favor of petitioner. From the judgment of the district court, entered pursuant to the order for judgment, the objectors appealed. Affirmed.
Will of nonresident -- devise of real estate.
1. R. L. 1905, § 3687, providing, among other things, that, upon administration in this state of the estate of a nonresident testator, the real estate shall be assigned according to the will, is not a statute of devolution; and, when construed in connection with the general statutes of descent and distribution, as it must be, it merely declares that such real estate shall be so assigned, as in the case of a domestic will, subject to any conditions and restrictions imposed by the statutes of this state upon testamentary dispositions of land generally.
Renunciation of will by spouse of nonresident testator.
2. No reason is to be found either in our statutes or our public policies why the general rule, that no presumption of exclusion of nonresidents will be indulged where the terms of the statute are general, should not be applied to R.L. 1905, §§ 3648, 3649; and hence the surviving spouse of a nonresident testator may, though also a nonresident, renounce the will and claim as statutory heir.
Renunciation of will by spouse of nonresident testator -- estoppel.
3. Such a renunciation, when properly made, will estop the survivor from thereafter claiming under the will in this state or elsewhere.
Renunciation of will by spouse of nonresident testator -- where made.
4. The renunciation contemplated by section 3649 must be made in the probate court of this state in which the foreign will is proved, or, if already proved elsewhere, in which it is allowed and filed, and the existence or nonexistence in other states of statutes relating to election can be material only upon a question of common law estoppel.
Surviving spouse -- degree of kindred.
5. The rights of a surviving spouse as statutory heir under R.L. 1905, § 3648, are not affected by section 3652, relating to computation of "degrees of kindred," and excluding those not of the blood of the ancestor from inheritance where the property is ancestral.
Mining leases construed.
6. Certain so-called mining leases, executed by a nonresident testatrix in her lifetime upon lands in this state, and in which her husband joined, held to be leases and not conditional sales of the ore in place, thus entitling her husband, claiming as statutory heir under R.L. 1905, § 3648, to one-third of the royalties accruing and to accrue thereunder subsequently to her death.
W. W. Gurley, Washburn, Bailey & Mitchell, Howard M. Carter, Arthur Dyrenforth, Sidney W. Worthy and Clark M. Capenee, for appellants.
Frank B. Kellogg, C. A. Severance, Robert E. Olds and Bryan Y. Craig, for respondent.
Prior to 1890, Wilhelm Boeing became the owner, by purchase, of a large acreage in the northern counties of this state, which contained deposits of iron ore. He died testate in the year stated, devising his estate to his wife and his three children in equal shares. His wife's interest thereby acquired was later increased by inheritance of the share of one of the children who died in infancy. Mrs. Boeing and Doctor Owsley, the respondent, intermarried in 1898. No issue resulted from the marriage. Neither the doctor nor his wife ever resided in this state, but lived in Albemarle county, Virginia, where she died testate on December 10, 1910, leaving her surviving her husband and two children, William E. Boeing and Caroline Marie Boeing Poole, the issue of her former marriage. By her will she bequeathed $35,000 in cash to her husband, and charged her estate with the payment of a life annuity of $10,000 in his favor. The will further provided that the bequest and annuity were intended by her to be in lieu of all rights which the law might give Doctor Owsley in the estate of the testatrix, and, in the event of his ignoring her will and appealing to the law, he was to receive nothing under the will. She devised a large part of her property to her children, who are parties to these proceedings. William E. Boeing and Rudolph Ortmann were appointed executors and qualified. The will was admitted to probate in the circuit court of Albermarle county, Virginia, on January 3, 1911, and an authenticated copy thereof was filed and recorded in St. Louis county, Minnesota, on February 27, 1911, and ancillary letters were issued by the probate court of the last-named county to the executors mentioned. All of the property owned by her in this state was disposed of by the will, and all of it came to her from her first husband as stated.
Doctor Owsley, on May 23, 1911, filed in the court of original probate, an instrument purporting to renounce the provisions of the will in his behalf, and on May 29, 1911, filed a like instrument in the probate court of St. Louis county. Thereafter he petitioned the latter court to have his claim to a one-third interest in all of the real and personal property of his deceased wife within the jurisdiction of the court determined, and for a distribution of the estate accordingly or a partial distribution upon such basis. At the hearing, the children of the deceased and the executors contested the application. The court, however, made its order adjudging Doctor Owsley to be vested, as surviving spouse, in fee simple of a one-third interest in the lands of which the deceased died seized, together with a one-third interest in all rents, profits, and royalties accruing and to accrue after and since the death of the testator from certain leases of the lands. The heirs and executors appealed to the district court of the county, and a trial de novo was had, resulting in a judgment affirming the decree of the probate court; whereupon they appealed to this court.
1. The first contention of the appellants is that, under the facts stated, Doctor Owsley had no right to renounce the will and take as statutory heir, and the question thus presented is whether the statutes under which he claims apply to estates of nonresidents. The statutory provisions, R.L. 1905, pertinent to this inquiry are as follows:
To continue reading
Request your trial