In re Estate of Evans
| Decision Date | 19 March 1920 |
| Docket Number | Nos. 21,579, 21,626.,s. 21,579, 21,626. |
| Citation | 145 Minn. 252 |
| Parties | IN THE MATTER OF THE ESTATE OF OWEN J. EVANS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Tamazine M. Evans appealed to the district court from the decree of distribution of the probate court for Hennepin county, Dahl, J., assigning to her an undivided one-third of the real estate belonging to the estate of her husband, Owen J. Evans, and to the Minneapolis Trust Company, in trust for the uses and purposes set forth in his will, an undivided two-thirds thereof. The appeal was heard by Fish, J., who made findings that the making of the contract mentioned in the opinion did not revoke the will; that the gift of $200 per month during her life was additional to her statutory one-third; that the $200 per month was a charge upon the remaining two-thirds, and that she was not put to an election between her statutory interest and the monthly payment, and remanded the case to the probate court with directions to modify its decree so as to direct the monthly payment to be made by the trustee to the widow. From the order denying the motion of appellant for amended conclusions of law or for a new trial, Tamazine M. Evans appealed. Affirmed in part; reversed in part.
Francis B. Hart, for appellant.
Lancaster & Simpson and L. F. Lammers, for respondents.
By his will Dr. Owen J. Evans of Minneapolis, after making a number of unimportant bequests, devised all of his property to the Minneapolis Trust Company, in trust, to pay from the rents and profits $200 per month to his wife during her life, and upon her death, with unimportant exceptions, the property remaining was to be sold and the proceeds distributed among his collateral blood relatives. After making his will he made a contract for a lease of certain property in Minneapolis, which was the principal portion of the property devised in trust, for 100 years, and in this contract, which was binding upon both parties, gave the lessee the option to purchase at any time within 10 years at a stated price. The probate court held that the making of this contract did not revoke the will, that the gift of $200 per month to Mrs. Evans was not additional to her statutory right, and that she was put to an election. On her appeal to the district court it was held that the making of the contract did not revoke the will, that the gift of $200 per month during her life was additional to her statutory one-third and that she was not put to an election, and that the gift of $200 per month was a charge upon the remaining two-thirds. Mrs. Evans appeals from the decree and the residuary devisees appeal. The arguments of counsel group themselves about these three questions:
(1) Whether the contract for a lease with the option to the lessee to purchase revoked the will by implication of law.
(2) If it did not, whether Mrs. Evans was put to an election, and this depends upon whether the gift of $200 per month was additional to the statutory one-third given her by statute.
(3) Involved in the preceding question is the question whether the statute, G. S. 1913, § 7239, which provides that a devise to the wife shall not be deemed additional to her statutory interest, unless it clearly appears from the will that such was the intent of the testator, applies when the devise is to a trustee for the wife's benefit and not directly to her.
1. Dr. Evans died on October 17, 1916. His will was dated November 11, 1914. He then owned a property in Minneapolis known as the Anglesey building, subject to a mortgage of $36,500. This property was worth something like $100,000 and was the principal part in value of his estate. He owned a quarter section in Cass county and some lands in other states, found by the court to be altogether of the value of $14,000. The value of his personal estate was small. He bequeathed to various of his relatives articles of personal property of no considerable value and not in controversy here. He devised the residue of his property to the Minneapolis Trust Company in trust. It was directed to sell the property devised, except the Anglesey, and apply the proceeds in reduction of the $36,500 mortgage; to lease the Anglesey, and after the payment of insurance, taxes and interest, to pay $200 per month to Mrs. Evans during life, and apply the rest in reduction of the encumbrance, and after the payment of the encumbrance to invest and reinvest and hold as a part of the trust fund. Upon the death of Mrs. Evans the Anglesey was to be sold and the proceeds divided among the testator's nephews and nieces and grandnephews and grandnieces. We omit mention of some of the provisions of the will not material here and refer to them in the connection in which they are important.
On September 16, 1916, Dr. Evans made a contract with the Benjamin A. Paust Company, whereby he agreed to lease the Anglesey for 100 years at an annual rental of $6,600, the lessee to pay taxes, insurance and repairs. The lessee was to erect an additional building on the property to cost not less than $4,000 within three years, and to further improve the property within ten years at an additional cost of not less than $8,000. The option was given the lessee to purchase within ten years for $110,000. If the purchase was made, enough cash was to be paid to discharge the $36,500 mortgage, and the balance was to be secured by a six per cent mortgage running for 25 years, with the option to pay at any time after the death of Dr. Evans and his wife.
After the death of Dr. Evans his executor executed a lease in conformity with the contract, in which Mrs. Evans joined, and it was approved by the probate court.
The claim of Mrs. Evans in this court, as in the court below, is that the making of this contract revoked the will and that she took the whole estate as sole heir. The probate court, and the district court on appeal, found against her.
It was the common-law doctrine that land unless owned by the testator at the time of his will and continuously owned by him thereafter until his death did not pass by a devise of it. 4 Kent, Com. 529. By consequence a conveyance of the land devised operated as a revocation of the will. It was said in such a case that there was a revocation by implication of law because of the alteration of the estate. The strict rule that the least alteration in the estate of the testator revoked the will, founded in part on the common-law conception of seisin on which English real property law was bottomed, and the necessity of livery to a conveyance, led to bewildering refinements and confusing distinctions often bringing absurd and harsh results of which the English judges complained, but the rule persisted. 1 Jarman, Wills, 161; Page, Wills, §§ 278, 279; 1 Redfield, Wills, 331-342; 1 Woerner, Adm. 103; 1 Schouler, Wills, § 427; 4 Kent, Com. 528; Gardner, Wills, 246; Rood, Wills, § 366, et seq.; 30 Am. & Eng. Enc. (2d ed.) 652; 40 Cyc. 1205; 27 Ann. Cas. 1913B, 56; Lang v. Vaughn, 137 Ga. 671, 74 S. E. 270, 40 L.R.A.(N.S.) 553, Ann. Cas. 1913B, 56; American T. & B. Co. v. Balfour, 138 Tenn. 385, 198 S. W. 70, L.R.A.(N.S.) 1918D, 538.
By statute, 1 Vict. c. 26 (1837), the doctrine of implied revocation was abolished. Section 19 provided "that no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." Section 23 provided that no conveyance made after the execution of a will should prevent its operation with respect of the estate or interest the testator should have power to dispose of by will at the time of his death. Section 24 provided that every will should be construed with reference to the property mentioned in it to speak and take effect as if executed immediately prior to the testator's death, unless a contrary intention appeared. Some of the states have statutes similar to those mentioned. Some others, as may be noted from the authorities cited above, reach much the same result without the aid of a specific statute.
We have no statute following section 19 or section 23 of the English statute. We have a statute which provides that every devise of land shall convey all the estate of the testator, unless it appears by the will that he intended a lesser estate. G. S. 1913, § 7263. This statute is easily referable to the quality of the estate transferred, so that, for instance, a fee may pass, though heirs or assigns or others than the devisee are not mentioned, and so to refer to the construction of the will rather than to bear on the question of implied revocation. See In re Oertle, 34 Minn. 173, 178, 24 N. W. 924; Gleason v. Fayerweather, 4 Gray, 348; Burlingham v. Belding, 21 Wend. 463. But in Estate of Lefebvre, 100 Wis. 192, 75 N. W. 971, such a statute was considered to bear on implied revocation. Another statute, resembling section 24, provides that property acquired by the testator after the making of his will shall pass as if possessed by him when he made it, unless a different intention manifestly and clearly appears from the will. G. S. 1913, § 7264. This statute is not in harmony with the theory upon which the common-law revocation by alteration of estate was based.
The statute which defines the different methods of express revocation provides that "nothing in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." G. S. 1913, § 7256. This has been construed to adopt the common-law doctrine of implied revocation whether by change of status or by alteration of estate. Graham v. Burch, 47 Minn. 171, 49 N. W. 697, 28 Am. St. 339; Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 34 L.R.A.(N.S.) 384, 61 Am. St. 419; Donaldson v. Hall, 106 Minn. 502, 119 N. W. 219, 20 L.R.A.(N.S.) 1073, 130 Am....
To continue reading
Request your trial