Priewe v. Priewe
| Decision Date | 18 November 1919 |
| Docket Number | 1915 |
| Citation | 175 N.W. 732,43 N.D. 509 |
| Court | North Dakota Supreme Court |
Petition for Rehearing filed December 15, 1919.
Appeal from judgment of District Court, Cole, J., in favor of the administrator, construing a will and settling a final account of an administrator, upon an appeal had from the County Court of Cass County.
Judgment modified; case remanded for further proceedings in county court.
Appellant entitled to the rents and profits of the remaining property, after the decease of the widow. Case remanded. No costs awarded to any of the parties upon this appeal.
Pollock & Pollock, for appellant.
So far as the interests of the children of a testator not mentioned in the will are concerned, it has been held that the validity and construction of the will may be discussed and adjudicated within a year from the probating of the will or at any time before the distribution of the estate. Lowery v Hawker, 22 N.D. 318, 37 L.R.A.(N.S.) 1143; Schultz v Schultz, 19 N.D. 688.
The intention of the testator must be found from the will itself, and such intention shall be given effect to its full extent if possible, and, if not, to its full extent so far as possible. Comp. Laws 1913, §§ 5685, 5686, 5690.
The natural interpretation of the language in the will used is that the testator gave all his property to his wife so long as she lived, "until her ded," and then gave the same property in remainder in fee to Albert G. Priewe, with a charge to pay the specific legacies. Boekemier v. Boekemier, 157 Iowa 372, 138 N.W. 493; Crandall v. Nichols (Iowa) 139 N.W. 719; Re James, 146 N.Y. 100, 40 N.E. 876; Balls v. Dampman (Md.) 1 L.R.A. 545.
When a life tenant pays off an entire mortgage indebtedness he becomes a creditor of the remainderman or reversioner for the share which should be contributed by such remainderman or reversioner, and the remainderman shall pay the amount of the encumbrance less the amount of the interest which the life tenant would have paid during such life tenant's expectancy. Comp. Laws 1913, § 5357, 29 L.R.A. (N. S.) 153; Draper v. Clayton (Neb.) 127 N.W. 369; Tindall v. Paterson (Neb.) 99 N.W. 659; Tideman, Real Prop. § 66; Bowen v. Brogan (Mich.) 77 N.W. 942; Whitney v. Satter (Minn.) 30 N.W. 755; 1 Washb. Real Prop. § 96, pp. 123 et seq.; 4 Kent Pom. 75; 1 Story, Eq. § 487.
The appraised value of an estate is not always conclusive in determining the administrators' fees, and if it is questioned the court may institute an inquiry into the actual value. 1 Ross, Probate Law & Pr. 753; Horton v. Barto, 17 Wash. 675, 50 P. 587; Wilbur v. Wilbur, 17 Wash. 683, 50 P. 589; Coursen's Estate (Cal.) 65 P. 965.
Augustus Roberts, for respondent.
The leading principle which the courts of both countries respect is that the testator's intent shall be followed, it being the pole star by which the courts shall be guided. Such a rule, to be sure, leads into various courses, since every will must be steered by its own luminary. Yet, uniform justice is better than strict consistency. 1 Schouler, Wills, 5th ed. §§ 559, 579; vol. 2, § 1474.
Extrinsic evidence of attending facts and circumstances as to one's family relations, his property, his affairs, and the like--indeed whatever was likely to have influenced the disposition as it appears is always admissible for placing the court at the testator's point of view when he made the will, and thereby aiding a right interpretation of the instrument. Schouler, Wills, §§ 466, 475-477 and 479; Clark v. Boorman, 18 Wall 493, 502; Niell v. St. Aubin (Tex.) 209 S.W. 781; Weeks v. Cornwell 104 N.Y. 325; Lee v. Simpson, 134 U.S. 572, 33 L.Ed. 1038.
Decrees and judgments of country courts not appealed from are final. N.D. Comp. Laws 1913, §§ 8533, 8537, 8579.
Allowance is a preferred claim. Comp. Laws, § 8728; Re Whitney, 154 P. 856.
Taylor Crum, for Emil G. Priewe, Melvina Mergner, and Max Mergner.
If a life estate only is given, a devise over of the remainder is good. But when by the terms of the devise an estate in fee simple is given, the addition of a devise over of a remainder is void, because the whole estate having already been disposed of, there is nothing left for it to act upon. Mitchell v. Morse (Me.) 52 Am. Rep. 781; 1 Jarman, Wills, 5th ed. (Bigelow) 873; Jackson v. Bull, 10 Johns, 19, decided in 1813 by Chancellor Kent; Stimson v. Routree, 78 N.E. 332; Ross v. Ross, 35 N.E. 10; Harring v. Flowers, 45 So. 571; Stewart v. Walker, 39 Am. Rep. 311; McKenzie's Appeal, 19 Am. Rep. 525; Jones v. Bacon, 28 Am. Rep. 1, Campbell v. Beaumont, 91 N.Y. 465; Bills v. Bills, 8 L.R.A. 696, 45 N.W. 748; Mitchell v. Morse, 52 Am. Rep. 781; Moore v. Sanders, 40 Am. Rep. 703; Jackson v. Littell, 112 S.W. 53; Bernstein v. Bramble, 99 S.W. 682; Hume v. McHaffie, 81 N.E. 117; Fowler v. Duhme, 42 N.E. 623; Mulvane v. Rude, 45 N.E. 659; Perry v. Hockney, 55 S.E. 289; Walker v. Taylor, 56 S.E. 877; Scott v. Scott, 105 S.W. 896; Blackwell v. Blackwell, 32 S.E. 676; Ross v. Ayrhart 115 N.W. 906; Lamb v. Medsker, 74 N.E. 1012; Tullenwider v. Watson, 14 N.E. 571; Lewman v. Ownes, 64 S.E. 544; Ault v. Karch, 69 A. 857; Robinson v. Jones, 70 A. 948; Pritchell v. Jackson, 63 A. 965.
Any testimony by the scrivener tending to throw further light upon the surrounding circumstances under which the will was made should be submitted. N.D. Comp. Laws 1913, § 5686; Schultz v. Schultz, 19 N.D. 689; 1 Schouler, Wills, 5th ed. § 467; Cowan v. Shaver (Mo.) 95 S.W. 202; Re Dominici (Cal.) 90 P. 451; Dougherty v. Rogers (Ind.) 20 N.E. 783; Re Strik (Pa.) 81 A. 187.
This will was admitted to probate January 30, 1896, in the county court of Cass county. The executor declining to act, and administrator with the will annexed, the plaintiff, herein, was appointed and qualified.
The estate consisted of 160 acres of land in Cass county subject to a mortgage of $ 700 bearing interest at 8 per cent and certain miscellaneous personal property consisting of some farm machinery, two horses, a cow, and some household goods, appraised at a total value of $ 234.50. For the first five years, 1896 to 1900, the widow occupied or, partly occupied, the land and received the rents and profits therefrom.
From 1901 to 1916 inclusive, the land was looked after by the administrator, who received the rents and profits therefrom for which he has made an accounting. For some five or six years, commencing with the year 1903, the appellant, Albert Priewe, rented the land from the administrator. While the land was in the possession of the widow, she paid $ 400 on the principal of the mortgage, and the interest thereupon amounting to $ 138 up to 1901. During the course of the administration, which extended over a period of twenty-three years, the administrator in 1910 sold and conveyed a right of way over such land to the G. N. Railway Company, comprising some 5 acres, pursuant to condemnation proceedings first instituted, and thereafter upon proceedings in the county court through a petition, order, and license to sell such right of way. Out of the proceeds, the administrator paid the balance of the mortgage, with interest, and used the remainder for expenses of administration. It also appears that a few articles of the personal property were sold by the administrator, and the proceeds used or accounted for in the course of the administration. The appellant, Albert Priewe, either had, or has taken and kept, most of the remaining personal property. The administrator has made accountings from time to time covering his administration from the year 1901 up to and including the year 1916. This is represented by nine different accountings, to which the parties stipulate and which have been allowed by the county court as reported by the administrator. In April, 1909, the administrator made an agreement for the care of the widow with the daughter, Melvina Mergner and her husband, for a consideration of $ 10 per month. The widow resided with, and was supported by such daughter and her husband, from April 1, 1909 up to the time of her death, in December 1916. In 1917 the appellant herein took possession of the land and farmed...
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