Faloon v. Flannery

• Court: Minnesota Supreme Court
• Writing for the Court: CANTY, J.
• Citation: Faloon v. Flannery, 74 Minn. 38, 76 N. W. 954 (Minn. 1898)
• Decision Date: 25 October 1898
• Docket Number: 11,371 - (89)
• Parties: MARGARET FALOON v. FRANK FLANNERY and Others

76 N.W. 954

74 Minn. 38

MARGARET FALOON v. FRANK FLANNERY and Others

Nos. 11,371 - (89)

Supreme Court of Minnesota

October 25, 1898

Action in the district court for Sibley county to partition certain real estate. The cause was tried before Cadwell, J., without a jury, and the court found that defendant Frank Flannery was the owner in fee of the premises. From an order denying plaintiff's motion for a new trial, she appealed. Reversed.

SYLLABUS

Will -- Division among Testator's Children -- Decree Assigning Real Estate -- Construction.

The testator's will directed his widow to divide his real estate between his children, "to the best advantage as she sees fit and proper." In its decree of distribution the probate court assigned the real estate to the widow "subject to the conditions and provisions of the will." Held, she did not, by the terms of the decree take the real estate for her own use and benefit, but was still required to divide it between the children, and, in doing so, could not exclude any of them.

Will -- Excluded Child Owner of Undivided Interest.

She attempted so to exclude this plaintiff, one of said children, and thereafter died. Held, the plaintiff is the equitable owner of an equal undivided share of said real estate.

Geo. S. Grimes, for appellant.

The will confers upon the trustee of the power no power to distribute the real estate in such manner or proportion as she may think proper. The will further provides that the real estate shall be divided between the children "to the best advantage." To the best advantage of whom? The children. An exclusion of one child certainly would not be to the advantage of that child, and a distribution of the estate to one child, to the exclusion of others, certainly would not be a division of the real estate among the children to the best advantage. The deed to Frank Flannery, if intended as an execution of the power, was in excess of the power and void. Thrasher v. Ballard, 35 W.Va. 524; Lippincott v. Ridgway, 10 N.J.Eq. 164; Wright v. Wright, 41 N.J.Eq. 382. The law will not presume that the testator intended to disinherit any one, or all but one, of his children, or delegate that power to another, unless it clearly so appears from the terms of the will. Kemp v. Kemp, 5 Ves. 849; In re Veale, L.R. 4 Ch. Div. 61.

McClelland & Tifft, for respondent Frank Flannery.

We contend that the case of Tidd v. Rines, 26 Minn. 201, is authority for our contention that the decree assigns the real estate in controversy to Bridget Flannery in fee. See also Foose v. Whitmore, 82 N.Y. 405. To the point that the will of Cornelius Flannery does not create a trust, but is an absolute devise to the widow, Bridget Flannery, see 2 Story, Eq. §§ 1069-1072; 1 Jarman, Wills, 685-695; Hutton v. Hutton, 41 N.J.Eq. 267; 27 Am. & Eng. Enc. 38-43, and cases cited; Knox v. Knox, 59 Wis. 172.

But if the will is sufficient to create a trust, then it has been executed in accordance with the terms of the will, and in any event appellant is not in a position to raise the question. 2 Black, Judg. § 643; Kurtz v. St. Paul & D. Ry. Co., 61 Minn. 18; Davis v. Hudson, 29 Minn. 27; Curran v. Kuby, 37 Minn. 330; Yeatman v. Yeatman, 35 Neb. 422.

OPINION

CANTY, J.

This action was brought to partition the land in question, plaintiff claiming to be the owner of the undivided one-seventh of it, and defendant Frank Flannery claiming to be the owner of the whole of it. The trial court found for defendant, and, from an order denying a new trial, plaintiff appeals.

Plaintiff's father, at the time of his death, in September, 1874, was the owner of the land. He left a will, which, so far as here material, reads as follows:

"First. After all my lawful debts are paid and discharged, the residue of my real estate and personal I give and bequeath and dispose of as follows to wit: To my beloved wife, Bridget, I intrust the whole care and charge of the management of all my temporal affairs, real and personal, to have her raise up and educate my children, and, when they are of age, to divide my real estate, viz., the west half of the northwest quarter, and the southeast quarter of the northwest quarter, and the northwest quarter of the southwest quarter, in section No. 12, township 114, range 26, between them to the best advantage, as she sees fit and proper."

The will was duly proved and thereafter, on October 2, 1894, the probate court made a decree assigning said real estate. The decree, so far as here material, reads as follows:

"And it further appearing that the following named person is the only person entitled to the whole of said estate by virtue of the last will and testament of Cornelius Flannery, deceased viz., Bridget Flannery, widow of said deceased, * * * it is ordered, adjudged and decreed * * * that all and singular of the above-described real property be, and the same is hereby, assigned to, and vested in, the said Bridget Flannery, widow, subject to the...