Duxbury v. Shanahan
| Decision Date | 15 November 1901 |
| Citation | 84 Minn. 353,87 N.W. 944 |
| Parties | DUXBURY et al. v. SHANAHAN (KELLY, Garnishee). |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Ramsey county; Hascal R. Brill, Judge.
Action by F. A. Duxbury and W. R. Duxbury against Bridget Shanahan; James C. Kelly, granishee. From an order refusing to discharge the garnishee, he appeals. Affirmed.
1. When the last will and testament of a deceased person has been duly proved and allowed in the probate court of the proper county, and proceedings involving its interpretation and legal effect are therein pending, a district court cannot be allowed to construe the instrument upon a disclosure made by the executor as garnishee.
2. The proper practice in such a case is for the court taking the disclosure to stay all proceedings pending a construction of the will, and a determination of its legal effect in the probate court which has acquired original jurisdiction of the estate.
3. Subsequent to a disclosure, in which all of the facts appeared, and also that the executor had in his hands a large sum of money belonging to said estate, attorneys for the garnishee moved that he be discharged, and thereafter appealed from an order denying the motion. Whether such order is appealable is questioned, and left undetermined. W. H. Harries and James O'Brien, for appellant.
Duxbury & Duxbury, for respondents.
The essential facts in this case are that Philip Shanahan, a Catholic priest, resident of the county of Houston, died testate in March, 1900, leaving property of the value of more than $16,000. His last will and testament was duly presented, proved, admitted to probate, and the executor therein named duly appointed by an order of the probate court of said county in April, 1900. So far as appears from the record, nothing further has been done in the probate court in the matter of a settlement of said estate or a distribution of the assets belonging thereto. By the terms of said last will and testament, all just debts and funeral expenses were to be first paid, and then three bequests were made, or were attempted to be made,-one of $500, one of $1,000, and the other of the entire residue of the estate. The sole heir at law of the deceased is a brother, residing in Ireland; and thereafter he duly transferred and assigned all of his right, title, and interest in and to the estate to his daughter, Bridget Shanahan, the defendant. The executor is Kelly, the garnishee herein. After his transfer and assignment, Miss Shanahan entered into a contract with the plaintiffs, attorneys at law, whereby they were to protect her interests, perform the necessary legal services required to secure to her all or part of the estate, upon the ground of the invalidity of the bequests, and were to receive as compensation one-third of the amount recovered or secured to her out of the assets. It appears that subsequent to this contract Miss Shanahan attempted to repudiate it, and thereupon the plaintiffs brought suit in the district court of Houston county to recover the value of reasonable services rendered by them in securing for Miss Shanahan, out of the estate of her deceased uncle, and under said agreement, the sum of $15,000, according to the allegations of the complaint. The defendant, being a resident of Ramsey county, compelled a transfer of the action to the district court of that county, and, so far as we know, it is still at issue, and undetermined. Soon afterwards, a summons in garnishment was issued, directed to the executor, Kelly, and in response thereto he made a disclosure from which it appeared that he had in his hands, as executor, more than $10,000 in money, over and above the expenses of administration and all debts and liabilities of the estate. All parties interested have been brought into the granishment. As a part of this disclosure, the facts hereinbefore referred to were made known to the district court, and thereupon the attorneys for the garnishee moved the court for his discharge. This motion was denied, and from the order of denial this appeal was taken.
We have fully stated the facts that the precise situation may be seen. The order will have to be affirmed. Both pa...
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