Knutsen v. Krook
| Decision Date | 08 July 1910 |
| Docket Number | 16,562,16,563 - (139,140) |
| Citation | 127 N.W. 11,111 Minn. 352 |
| Parties | LARS KNUTSEN and Others v. CARL W. A. KROOK |
| Court | Minnesota Supreme Court |
Appeal to the district court for Brown county by Lars Knutsen and five others from an order of the probate court of that county allowing the final account of Carl W. A. Krook, as executor of the estate of Anna Brust, deceased, which account included claims allowed to Henry F. Bergmann and Mary Hoerr for $1,295, the residue of the estate after complying with the provisions of the will, and an appeal by the same persons from the final decree of the probate court assigning the residue of the estate to said claimants. The appeals were tried together before Olsen, J., who found for the appellants below, Lars Knutsen, Trond Knutsen, Ingebor Knutsen, Kari Knutsen, Christine Knutsen and Margreth Knutsen, the heirs of the deceased Anna Brust. From judgments directing the probate court to amend the final account of the executor so as to disallow the items claimed by said Bergmann and Hoerr and to amend its final decree in said estate so as to distribute said residue to the heirs at law of the decedent, the executor appealed. Affirmed.
Appeal from probate court -- computation of time.
The thirty days within which an appeal may be taken from an order, judgment, or decree of a probate court, under section 3874, R.L. 1905, commences to run from the time of notice of the order or judgment appealed from.
Appeal from probate court -- limitation.
When no notice is given or shown to have come to a person entitled to appeal, an appeal may be taken at any time within six months from the entry of the order or decree.
Appeal from probate court -- burden of proving.
The burden is upon the party moving to dismiss an appeal, which it is claimed should have been taken within thirty days, to show notice of some kind to the appealing party of the entry of the order or judgment by the probate court.
Appeal from probate court.
No such notice was shown in this case.
Claim against decedent -- definition.
A "claim" against the estate of a deceased person within the meaning of our statutes, is a demand of a pecuniary nature which could have been enforced against decedent in his lifetime.
Claim against decedent -- applied to demand for residue.
A demand for the whole or a part of the estate is not a "claim" against it, within the meaning of the statutes.
Validity of demand -- review.
The validity of such demand, formally allowed by the probate court, though no appeal from the order allowing the same was taken, may be determined upon an appeal from the final decree of the probate court.
Albert Pfaender, for appellant.
Otto Kueffner and Albert Steinhauser, for respondents.
Henry C. Bergmann, then a resident of New Ulm, Brown county, died in 1881, leaving him surviving a widow and two children by a former marriage. The children, Henry F. Bergmann and Mary Bergmann, now Mrs. Hoerr, for purposes of clearness will be referred to hereafter as claimants. By his last will and testament Bergmann left all and singular his property to his widow for and during her life, with the remainder over to these children after her death. The will was duly probated and a final decree entered in December, 1881, assigning the property to the widow absolutely, and not for life, as provided for in the will, and the decree so remained of record and in full force until the death of the widow in 1908, when an attempt was made to modify it to conform to the will. This feature of the case will be referred to later in its proper connection.
Subsequent to Bergmann's death his widow married one Jacob Brust with whom she continued to reside until her death. An antenuptial agreement at the time of the marriage referred to disposed of the property rights of the parties, and the surviving husband, Brust, has no interest in the property left by his wife. By her will she disposed of the greater part of the property received from and accumulated since the death of her first husband by specific bequests to her brothers and sisters, and also to claimants and the minor children of one of them. The bequests were in the form of money payments, except two parcels of real property, but did not aggregate the total value of the estate. The will contained no residuary clause, and what remained after the payment of the bequests became a part of her general estate, to be distributed to her heirs precisely as though she had died intestate. Mrs. Brust's will was duly probated and allowed by the probate court on April 28, 1908.
Pending the administration of the estate, and before the expiration of the time allowed for the presentation of claims, claimants made and filed with the probate court what purported to be a claim, asserting a right therein to the residue of Mrs. Brust's estate. These claims, in the form of an extended statement of facts, recite the execution of the Bergmann will; that by the terms thereof the property was left to Mrs. Brust, then Mrs. Bergmann, for her use during life, with the remainder to claimants at her death; that there was an error in the final decree of the probate court in the administration of that estate, the decree erroneously vesting in the widow the absolute property, instead of a life estate, as granted by the will; that subsequent to the death of Mrs. Brust the former decree was modified by the probate court, and effect given to the will. By reason of all of this claimants asserted a right to all the property left by Mrs. Brust. They expressed, however, a willingness to permit the will to be carried out as to the specific bequests therein made, but claimed the residue of the estate. Upon the filing of the statements the probate court indorsed thereon: "The within claim is allowed November 2, 1908."
There remained, after payment of bequests and expenses of administration, the sum of $1,295, and this amount was paid to claimants by the executor of Mrs. Brust's estate, pursuant to this order of the court. Thereafter in due course of procedure the executor presented his final account to the probate court, showing, among other things, the payment of the residue to the claimants, which final account, after due notice and hearing, the probate court approved and allowed. This order, and also the final decree in the matter, were entered of record on December 28, 1908.
On January 26, 1909, the heirs of Mrs. Brust, brothers and sisters, appealed to the district court, both from the order allowing the final account and also from the final decree. The notice of appeal was served on that day, but not filed until January 28, 1909. The appeals came on and were heard before the district court, and resulted in a modification of the final decree, the district court holding that claimants had no lawful right to the residue of the estate, and the same was adjudged to belong to the heirs of Mrs. Brust. Judgment of the district court was entered accordingly, and claimants appealed. The assignments of error present three principal questions, which will be considered in their order.
1. When the appeals came on for trial in the district court, counsel for claimants moved to dismiss the same on the ground that they were not perfected in time. The court overruled the motion, and this presents the subject-matter of the first question. As heretofore stated, the order of the probate court allowing the executor's final account and the final decree were each entered on the twenty-eighth of December, 1908. The notices of appeal therefrom were properly served within thirty days thereafter, but were not filed with the court until the second day following, or one day beyond the thirty-day period. It is the contention of claimants that the appeals were ineffectual to give jurisdiction to the district court, for the reason that the notices thereof with proof of service were not filed within the time prescribed by law.
Counsel is in error. Section 3874, R.L. 1905, provides, in substance that no appeal from the probate court shall be effectual for any purpose, until the following requisites are complied with by the appellant within thirty days after notice of the order, judgment, or decree appealed from, namely: (1) The service of a notice of appeal upon...
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