Greenwood v. Murray

• Decision Date: 08 July 1881
• Citation: 28 Minn. 120
• Parties: SAMUEL D. GREENWOOD <I>vs.</I> WILLIAM P. MURRAY, Executor, and another.
• Court: Minnesota Supreme Court

28 Minn. 120

SAMUEL D. GREENWOODvs.

WILLIAM P. MURRAY, Executor, and another.

Supreme Court of Minnesota.

July 8, 1881.

Meliza J. Miller died May 15, 1872, leaving a will, by which she devised to defendant Murray certain real estate in the city of St. Paul, in trust to sell the same five years after her decease, and pay the proceeds to certain persons, in the manner stated in the opinion. On July 13, 1874, the probate court of Ramsey county, where the will was proved, on the application of Murray, as executor, and after notice given in the manner stated in the opinion, made a final decree, assigning this real estate to Murray, in trust, under the will.

Plaintiff, as assignee of William H. Stewart and William R. Miller, two of the beneficiaries of the trust, brought this action in the district court for Ramsey county, to compel the execution of the trust, five years having elapsed since the death of the testatrix. Defendants demurred to the complaint, and the order sustaining the demurrer was reversed by this court. See 26 Minn. 259.

The defendants then answered, and the cause was tried by Simons, J., who ordered judgment for plaintiff. A new trial was refused, and the defendants appealed.

H. J. Horn and W. P. Murray, for appellants.

Chas. N. Bell, for respondent.

CLARK, J.

When this case was before this court upon demurrer to the complaint, it was held that the decree of the probate court, assigning to the defendant Murray the real estate described in the will of Meliza J. Miller, in trust, for the purpose of the will, was effectual to establish the trust, although it was originally void. Greenwood v. Murray, 26 Minn. 259. For the purpose of that decision, the decree was treated as valid, it having been alleged in the complaint to be so. The defendants subsequently answered, putting in issue the validity of the decree, and the trial of this, among other issues, has been had. The defendants now claim that the decree of the probate court was without jurisdiction and void, for the reason that notice was not given to the defendants of the application therefor, as required by Gen. St. 1878, c. 56, § 8. That section is as follows: "Such partition and distribution may be ordered on the petition of any of the persons interested; but before any partition is ordered as directed in this chapter, notice shall be given to all persons interested who reside in the state, or their guardians, and to the agents, attorneys, or guardians, if there are any in the state, of such as reside out of the state, either personally or by public notice, as the probate court shall direct."

The word "partition," where it secondly occurs in this section, embraces the decree assigning the residue of the estate to the parties entitled thereto at the close of the administration, pursuant to section 4 of the same chapter under which the decree in question was made. Wood v. Myrick, 16 Minn. 494. The notice prescribed by section 8 is necessary to confer jurisdiction upon the probate court to make such decree. Id. The decree was made on the application of defendant Murray, and he is not, therefore, in a position to object to it; but this does not dispose of the question as to the defendant Louisa Miller. Notice to her was given by the publication of the following order, in the paper designated therein, once a week for three successive weeks, there having been four publications at intervals of a week:

"State of Minnesota, County of Ramsey. — In Probate Court. Special Term, June 17, 1874.

"IN THE MATTER OF THE ESTATE OF MELIZA J. MILLER.

"On reading and filing the petition of William P. Murray, executor of the estate of Meliza J. Miller, deceased, representing, among other things, that he has fully administered said estate, and praying that a time and place be fixed for examining and allowing his account of his administration, and that said estate be assigned to the devisee named in the will of said deceased, it is ordered that said account be examined by the judge of this court, and said petition heard, on Monday, the thirteenth day of July, A. D. 1874, at 10 o'clock A. M., at the probate office in said county; and it is further ordered, that notice thereof be given to all persons interested, by publishing a copy of this order, for three successive weeks prior to said day of hearing in the St. Paul Daily Evening Dispatch, a newspaper printed and published at the city of St. Paul, in said county.

                       "By order of the court.                  H. R. BRILL
                                  "Probate Judge of Ramsey County, Minnesota."
                

It is claimed, with respect to the publication, that a publication once a week, for the period prescribed by the order, was not a compliance with its terms, but that the publication should have been daily, or in every issue of the paper, for three weeks; and, with respect to the form of the notice, that it should have been directed to Louisa Miller by name. Upon the first point, the language employed in the order is similar to that used in several instances in the statutes regulating probate proceedings. Notice of the probate of a will is required to be published "in such newspaper printed in this state as the judge shall direct, three weeks successively." Gen. St. 1878, c. 47, § 14. Notice of the hearing of an application for the appointment of...