Parten v. First National Bank & Trust Co.
| Decision Date | 30 December 1938 |
| Docket Number | 31,813 |
| Parties | G. A. PARTEN AND OTHERS v. FIRST NATIONAL BANK & TRUST COMPANY AND OTHERS |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county by G. A. Parten, N E. Pardee, and P. L. Solether against First National Bank and Trust Company as trustee under the will of Owen J. Evans and as executor of and trustee under the will of Tamazine M Evans, and others, to recover $14,163.35 with interest and for judgment that this amount be made a lien in favor of the bank as trustee under the will of Owen Evans on the interest of Tamazine Evans in certain real property in Minneapolis and for certain other relief. There were findings for plaintiffs, Paul S. Carroll, Judge. From an order denying their motion for a new trial, defendants Maude L. McKee Beecher McKee Cochrane, and First National Bank and Trust Company as executor of and trustee under the will of Tamazine Evans appealed. Reversed with directions.
Appeal and error -- review -- extent of review -- on appeal from order denying new trial.
1. On appeal from an order denying a new trial the review is limited to errors assigned in the motion for new trial.
Judgment -- construction in general and practical construction.
2. A judgment or decree if ambiguous will be given that construction which makes it such as ought to have been rendered in the light of the whole record; and where the parties have placed a practical construction upon a judgment or decree, that construction will not be changed except for strong reasons.
Tenancy in common -- right to contribution from cotenants.
3. A tenant in common who is primarily liable for the payment which he makes is not entitled to contribution on account thereof from his cotenants.
Thompson, Hessian & Fletcher, for appellants.
Keyes, Pardee, Solether & Carr, for plaintiff-respondents.
This action is brought to recover judgment that the First National Bank and Trust Company as trustee under the will of Dr. Owen J. Evans, deceased, is entitled to a lien upon the interest formerly belonging to Mrs. Tamazine M. Evans in certain real estate in Minneapolis known as the Anglesey Hotel, for contribution on account of the sum of $14,163.35 expended by it as cotenant of Mrs. Evans and the other defendants in payment of taxes, interest, and instalments of principal of a mortgage on the property. Foreclosure of the lien by sale, but no personal judgment, is asked. The First National Bank and Trust Company is defendant both as trustee under the last will of Dr. Evans, deceased, and as executor under the last will of Mrs. Evans, also deceased. Herein it will be disignated only as trustee or executor in referring to it in its respective representative capacities.
This controversy is between two groups who derive their rights from Dr. Evans. The plaintiffs are beneficiaries of the C. T. Edgar Trust, which has succeeded to the interest of the residuary legatees, and the defendants the executor, McKee, and Cochrane have succeeded to the interest of Mrs. Evans. Dr. Evans died testate on October 17, 1916. By his will he disposed of his entire estate in trust to the trustee's predecessor in which he provided, among other things, that Mrs. Evans was to have a monthly income of $200 from the trust estate and after her death that the property was to be sold, converted into cash, and distributed among his nieces, nephews, grandnieces, and grandnephews. Mrs. Evans elected to take under the statute, in consequence of which she took one-third and the trustee got only two-thirds of Dr. Evans' estate. The interest of the residuary legatees was acquired by C. T. Edgar in 1926 and later conveyed by him in trust to the trustee of the C. T. Edgar Trust (see In re Trust Created by Edgar, 200 Minn. 340, 274 N.W. 226), of which the plaintiffs are beneficiaries. The trustee and Mrs. Evans and later her successors in interest have been the owners of the Anglesey as tenants in common. The tenancy in common is the basis of plaintiffs' claim that the trustee has a right of contribution.
Sometime after he drew his will and shortly before he died, Dr. Evans contracted for a lease of the Anglesey at an annual rental of $6,600, the lessee to pay the taxes and insurance. The lease was executed after his death by the executor acting under license of the probate court and the widow. When the final decree was made the widow was entitled to one-third of the rent due under the lease and the trustee to the other two-thirds thereof. After compliance with the provisions of the will with respect to the payment of legacies, conversion of certain real estate into cash, and the application of the proceeds on the Anglesey mortgage, the Anglesey Hotel was the principal property of the estate. It was subject to a mortgage of $36,500, which was the personal obligation of the testator but not of Mrs. Evans.
The defendants claim that the last amended final decree in the probate court has determined that the trustee should make the payments out of the share of the Dr. Evans estate which it has received in trust. Mrs. Evans claimed, when she made her election to take under the statute as widow, that the provisions of the will were in addition to and not in lieu of her rights as widow. But this claim was not sustained. See In re Estate of Evans, 145 Minn. 252, 177 N.W. 126, 8 A.L.R. 1631. Proceedings to construe the will were then instituted in the probate court in which Mrs. Evans claimed that she was entitled to one-third of Dr. Evans' property absolutely as the widow and that among other things the trustee was required to pay her the income of $200 per month, and also pay the taxes, interest, and principal of the mortgage on the Anglesey out of its share of the Anglesey rents. The probate court denied her contention. She appealed to this district court of Hennepin county, which held that she was not entitled to the income of $200 a month upon the grounds that her election to take under the statute was in lieu of the provisions of the will made for her benefit, but that the trustee was required to carry out the trust so far as collecting the rents and profits and paying the taxes and interest of the mortgage on the Anglesey. Judgment pursuant to the findings of fact and conclusions of law of Judge Montgomery was entered on March 26, 1923, and provided in section 3 that Mrs. Evans, the widow, by reason of her election to take under the statute, was entitled to an undivided one-third of all the rest and residue of Dr. Evans' property in lieu of the provisions of the will, and in section 5:
and directed the probate court to modify its final decree in accordance therewith. On July 25, 1923, the probate court amended its final decree to conform with the judgment of the district court. On October 23, 1923, another amended decree of the probate court, referred to herein as the last amended final decree of the probate court, was made, as it recited, "chiefly for the purpose of fixing the compensation of L. F. Lammers, Esq., for legal services rendered in the district court for the persons claiming as residuary legatees." That decree provided that Lammers was entitled to a lien on the interest of the residuary legatees, the validity of which we do not now determine, in the sum of $8,530, and in section 3 that Mrs. Evans, by reason of her election to take under the statute in lieu of the provisions of the will, was entitled to an undivided one-third of all the rest and residue of the estate, real, personal, and mixed. Section 5(a) thereof was exactly the same as section 5(a) of the district court judgment except that "to pay said Tamazine M. Evans one-third thereof, and from the remaining two-thirds thereof" was omitted following "(a) To hold, manage, rent and lease the said property and out of the proceeds therefrom * * *."
Approximately two years afterwards, the nieces, nephews, grandnieces, and grandnephews made a motion to have Judge Montgomery amend the district court judgment by striking from section 5(a) that part which was omitted by the probate court in the last amended final decree. It was claimed that this provision, as originally drawn, provided that Mrs. Evans was to receive one-third of the Dr. Evans estate in fee and one-third of the income from the two-thirds held in trust. There was no claim that the trustee was not to pay the Anglesey taxes, interest and principal of the mortgage. In support of the motion there was a showing by affidavit of one of the attorneys that the decision of Judge Montgomery sustained the contention of Mrs. Evans in part "and held that the mortgage on the Anglesey should be paid out of the income from the two-thirds interest of the heirs in the Anglesey and from their two-thirds interest in the other property in the estate worth about $14,000," that the probate court had entered an amended final decree in conformity with the...
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