Empenger v. Fairley (In re Schmeidel's Estate)

• Decision Date: 18 October 1912
• Parties: In re SCHMEIDEL'S ESTATE. EMPENGER v. FAIRLEY.
• Court: Minnesota Supreme Court

119 Minn. 186

137 N.W. 1110

In re SCHMEIDEL'S ESTATE.EMPENGER

v.FAIRLEY.

Supreme Court of Minnesota.

Oct. 18, 1912.

Appeal from District Court, Hennepin County; John H. Steele, Judge.

In the matter of the estate of Josephine Schmeidel. Petition by Joseph H. Empenger, executor, to construe a devise to Mary Fairley. Judgment for devisee in the probate court, and petitioner appealed to the district court, which modified the probate court decree, and the devisee appeals from an order denying her motion for new trial. Affirmed.

Syllabus by the Court

An executor may appeal from a judgment of the probate court, construing the will and assigning the property to a devisee. In re Bretzman's Will, 135 N. W. 980, followed and applied.

The rule in Wait v. May, 48 Minn. 453, 51 N. W. 471, that the grant of a lot in the original plat of the village of Excelsior, bounded on Lake street, is presumptive evidence of an intention to convey title to the full width of Lake street and to the shore of the lake, has no application to conveyance by deed or devise after Lake street has been vacated.

The village of Excelsior had power to vacate a portion of Lake street, and properly exercised such power.

After such vacation, the owner of a lot in such original plat conveyed by metes and bounds that part of the lot south of Lake street, and by a separate deed conveyed to the same grantee that part of the lot north of Lake street and between such street and the lake shore. Held, that the first-named deed did not convey title beyond the center line of that portion of Lake street not vacated, and that a devise by the grantee, referring to said deed for a description of the real estate devised, gave title to the devisee only to said center line.

There was no reversible error in the rulings on the admission of evidence. A. B. Choate, of Minneapolis, for appellant.

Hicks & Carleton and Geo. A. Carleton, all of Minneapolis, for respondent.

BUNN, J.

Josephine Schmeidel, a resident of Hennepin county, died October 28, 1910, leaving no husband or children. At the time of her death she was the owner of part of lot 3 in the original plat of the village of Excelsior. Her portion of the lot was the center one-third of the northerly half, and fronted on Lake street, overlooking Lake Minnetonka. The location of lot 3 with reference to Lake street and the lake is shown by the following plat:

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The decedent left a will, which contained the following devise: ‘I devise all that certain piece of land known as part of lot 3, village of Excelsior, Minnesota, and recorded in the office of the register of deeds of the county of Hennepin, Minnesota, in Book 632 of Deeds, on page 155 etc., to Mary Fairley.’

Respondent, the executor of the will, in August, 1911, petitioned the probate court to construe the above devise to Mary Fairley; the doubt being as to whether under it the devisee took title to the entire lot owned by the testatrix, including that portion thereof lying between the southerly line of Lake street and low-water mark, or whether her title stopped at the southerly line of Lake street. The probate court assigned the entire lot to Mary Fairley. The executor appealed to the district court, where the decree of the probate court was reversed or modified, so that by its terms no part of lot 3 lying between the center line of Lake street and the lake shore should be assigned to Mary Fairley. The case comes to this court on appeal by Mary Fairley from an order denying her motion for a new trial.

[1] 1. Appellant's first contention is that the appeal of the executor to the district court should have been dismissed, for the reason that the executor had no right to appeal. We hold against this contention, following and applying In re Bretzman's Will (Minn.) 135 N. W. 980.

[2] 2. The case on the merits involves a construction of the devise above quoted. The real question is as to the intention of the testator, as derived from the language of the will, construed in the light of the surrounding circumstances and subject-matter. The deed referred to in the devise discloses a conveyance by Mary Fairley to Josephine Schmeidel of that part of lot 3 lying southerly of the south line of Lake street. This deed was executed March 23, 1907, recorded March 25, 1907, and described by metes and bounds the property conveyed. On the same day Mary Fairley executed another deed to Josephine Schmeidel, in which the description of the property conveyed was ‘a strip of land lying between the northerly boundary line of Lake street and the shore of Lake Minnetonka, lying northerly from a part of lot three (...