Ladd v. Weiskopf
| Decision Date | 10 July 1895 |
| Docket Number | 8906-(7) |
| Parties | HENRY E. LADD v. ROSA WEISKOPF and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $ 500 paid as earnest money upon a contract of sale. By the contract defendants agreed to sell certain lands to plaintiff, and it was mutually agreed thereby that if the title was not good and could not be made good within sixty days, the agreement should, at the election of defendants, be terminated and annulled and the sum of $ 500, paid by plaintiff on the delivery of the contract, should be refunded, but if the title was or could be made good, and plaintiff refused to accept it, the $ 500 should be forfeited; and the parties bound themselves for the faithful performance of the contract in the sum of $ 250, liquidated damages to be paid by the party failing. Defendants in their answer sought to recover said sum of $ 250, as a counterclaim. Prior to the date of the decree of distribution referred to in the opinion, Harry Weiskopf, one of the distributees named in the decree, and wife, executed to Georgina Weiskopf, one of defendants, a deed whereby they granted, bargained and sold, released and quitclaimed all their right, title and interest, present and future, in the land in controversy, the deed containing covenants that the grantors had not made or suffered incumbrances, and that they would warrant and defend the title to the premises against all persons lawfully claiming the same from or under them or either of them. The other facts are stated in the opinion. The case was tried without a jury, and the court, Russell J., found in favor of defendants and ordered judgment in their favor for $ 250. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.
Order affirmed.
A. B Jackson, for appellant.
The decree of distribution is not binding upon devisees under the will not in being when the decree was entered. Dale v Rosevelt, 1 Paige, 35; Osgood v. Manhattan Co., 3 Cow. 612; Mason's Devisees v. Peter's Admrs., 1 Munf. 437; Kent v. Church of St Michael, 136 N.Y. 10, 32 N.E. 704; Monarque v. Monarque, 80 N.Y. 320; Davis v. Hudson, 29 Minn. 27, 11 N.W. 136; Ruth v. Oberbrunner, 40 Wis. 238, 267-272; Bresee v. Stiles, 22 Wis. 120; Black, Judgments, §§ 560, 638, 643; Brigham v. Fayerweather, 140 Mass. 411, 5 N.E. 265; Moore v. Appleby, 108 N.Y. 237, 15 N.E. 377; Methodist Episcopal Church Home v. Thompson, 108 N.Y. 618, 15 N.E. 193; Harris v. Strodl, 132 N.Y. 392, 30 N.E. 962. A finding of fact is not a final adjudication. Child v. Morgan, 51 Minn. 116, 52 N.W. 1127. A probate court has no jurisdiction to reform a will. Sherwood v. Sherwood, 45 Wis. 357; Christman v. Colbert, 33 Minn. 509, 24 N.W. 301. A quitclaim deed by one of the devisees to one of defendants before the decree of distribution could carry only his contingent remainder under the will. Hope v. Stone, 10 Minn. 114 (141); Johnson v. Robinson, 20 Minn. 169 (189); Marshall v. Roberts, 18 Minn. 365 (405). The title was doubtful and not marketable, and hence the purchaser ought not to be required to take it. Moore v. Appleby, supra; Methodist Episcopal Church Home v. Thompson, supra. The action is brought in proper form. 15 Am. & Eng. Enc. Law, 640, et seq.; 2 Pomeroy, Eq. § 849; Champlin v. Laytin, 1 Edw. Ch. 467; Boas v. Farrington, 85 Cal. 535, 24 P. 787.
Shaw & Cray, for respondents.
The decree of distribution is conclusive, and cannot be attacked collaterally. Davis v. Hudson, 29 Minn. 27, 11 N.W. 136; State v. Ueland, 30 Minn. 277, 15 N.W. 245; Greenwood v. Murray, 26 Minn. 259, 2 N.W. 945. See, also, Wood v. Myrick, 16 Minn. 447 (494); Dayton v. Mintzer, 22 Minn. 393; Huntsman v. Hooper, 32 Minn. 163, 20 N.W. 127; Mousseau's Will, 30 Minn. 202, 14 N.W. 887; Balch v. Hooper, 32 Minn. 158, 20 N.W. 124; Miller v. Caragher, 35 Hun, 485; Thompson v. Myrick, 24 Minn. 4; Ames v. Slater, 27 Minn. 70, 75, 6 N.W. 418; Allis v. Davidson, 23 Minn. 442. In an action to recover money, plaintiff cannot invoke the equitable doctrine relating to suits for specific performance of contracts to sell or purchase land. Romilly v. James, 6 Taunt. 263; O'Reilly v. King, 28 How. Pr. 408.
The question in this case is whether the title tendered by defendants to plaintiff was good. The facts are these:
One Leopold Weiskopf died testate, and seised of certain real estate, including the tracts here involved. The material provisions of his will are as follows: (1) "I give, devise, and bequeath to my devoted wife, Rosa Weiskopf, for and during the remainder of her natural life, all those certain lands and real estate, situate in said county of Hennepin and state of Minnesota, described as follows:" [Here follow descriptions of property, which include all the tracts in question except lot 12, block 5, Hancock & Rice's addition to Minneapolis.]
The will was duly proved. After payment of all claims against the estate, expenses of administration, and all specific and general legacies, the probate court, upon application of the executors, and upon due notice, made a decree of distribution of the residue of the estate in and by which, after finding that the real estate in question ( describing it) remained in the hands of the executors for distribution, it further found, determined, and decreed This decree was rendered in 1886, and remains in full force, and has never been appealed from. Rosa, the widow of the testator, and all of his seven children named in the will, are still living, and it is their title, or title derived from them, which was tendered to plaintiff.
Defendants' contentions are (1) that this decree of distribution adjudges that the devisees named, to wit, the widow and seven children, were entitled to the property, and that it assigned the whole estate in the lands to them, and that such decree of distribution is conclusive and binding upon the whole world; (2) but, even if the decree is not conclusive, and the question of the construction of the will is still an open one, then upon the face of the will it devises a life estate in the lands to the widow, Rosa, and a vested remainder to the seven children named, share and share alike. On the other hand, plaintiff's contentions are: (1) That the remainder-men under the will are not the seven children named, but such of them, and the children of any of them that have deceased, as may survive the widow; and that the children, if any, of the deceased children will take by virtue of the will, and not by inheritance from their deceased parents; hence, until the death of the widow, it will be impossible to determine who these remainder-men are. (2) That the decree of the probate court does not purport to assign the whole estate in the land to the devisees named, but merely assigns it to them according to the terms and provisions of the will, so that we are referred back to the will to ascertain how the property is devised. (3) But that, even if the decree did assume to assign the entire estate in the land to the devisees named, it would not be binding upon the unborn issue of deceased children, if any, who might be living at the death of the widow, and who would take as remaindermen under the will. (4) That even if the title was in fact good, it was not marketable.
Under the view we take of the case, it becomes unnecessary to consider what would be the proper construction of the will as an original question, for the reason that we are of opinion that the decree of the probate court must be construed as assigning the entire estate in the lands to the devisees named, and that, whether this was...
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