Rong v. Haller (In re Rong's Estate)

• Decision Date: 03 December 1909
• Citation: 123 N.W. 471,109 Minn. 191
• Parties: In re RONG'S ESTATE. RONG v. HALLER.
• Court: Minnesota Supreme Court

109 Minn. 191

123 N.W. 471

In re RONG'S ESTATE.^*RONG

v.HALLER.

Supreme Court of Minnesota.

Dec. 3, 1909.

Appeal from District Court, Dooghue County; F. M. Crosby, Judge.

From the final decree of distribution in the estate of S. K. Rong, deceased, of whose will Axel Haller was executor, Soffi Rong appealed to the district court, where the decree was affirmed. From an order denying a new trial, she appeals. Reversed and remanded.

See, also, 106 Minn. 454, 119 N. W. 405.

Syllabus by the Court

In construing a will, the intention of the testator, expressed therein, must prevail, if consistent with law. If its language be reasonably susceptible of two constructions, one of which would invalidate the will, and the other sustain it, the latter must be adopted.

An action or proceedings involving the validity of a will must be determined from the same viewpoint as if it had been brought at the time of the death of the testator; for its validity depends, not on what has happened since the testator's death, but on what might have happened.

A devise of land which suspends the absolute power of alienation for a fixed period, however short, without reference to lives in being, is void; for no suspension of the power of alienation is valid, unless it must in every contingency terminate within the period of two specified lives.

Where a legal and illegal trust are created by will, and so connected as to constitute one general scheme, so that it must fail if the one be retained and the other rejected, the legal trust must fail with the illegal one.

The will set out in the opinion construed, and held void, because it illegally attempted to suspend the power of alienation of the testator's land. A. J. Rockne, J. A. Dalzell, and W. A. McDowell, for appellant.

Lind, Ueland & Jerome, for respondent.

START, C. J.

Severt K. Rong for 30 years next before his death was a resident of the county of Goodhue, this state, and owned and farmed land therein. He never married. On October 22, 1904, he made his last will, the here material provisions of which are in the words following:

‘I give, devise, and bequeath all of my estate both real and personal to Prof. M. G. Hanson to be held by him nevertheless in trust and for the purpose following, viz.: Such trustee shall convey, deliver and transfer the same and all increase issue and profit derived from said property and estate, less a reasonable compensation for his expenses and work performed in carrying out this trust, to the Hauges Norwegian Evangelical Lutheran Synod of America (a corporation), provided that it shall within five years after the settlement of my estate accept such conveyance and transfer by a resolution duly adopted by it; and in that event the Synod shall have and hold the property and estate forever and in trust for the purpose of erecting and maintaining thereon an orphans' home under such rules and regulations as the Synod may from time to time prescribe. But in the event the Synod shall fail to accept such gift within the time limited, then my trustee, Prof. M. G. Hanson, shall use and hold such property and estate for the purpose of erecting and maintaining and shall erect and maintain upon said premises and real estate an orphans' home as aforesaid. In the event of his failure or neglect so to erect and maintain such orphans' home within five years next succeeding the said five years allowed for the Synod to accept such gift or in the event of his death, the district court of Goodhue county, Minnesota, shall upon the application of any resident voter therein select and appoint some suitable person as trustee therefor and such trustee and his successors shall take possession of such property and use it for the same purpose as hereinbefore prescribed. In the event that Prof. Hanson as such trustee or any person appointed by the district court takes possession of my estate and property for such uses and purposes, such orphans' home shall be maintained and conducted under such rules and regulations as the trustee shall prescribe. I make and appoint Axel Haller to be executor of this, my will.’

The testator died March 4, 1905, leaving no widow, issue, father, mother, brother, or sister. His heirs at law are uncles and aunts, of whom Soffi Rong, the appellant herein, is one. The Hauges Norwegian Evangelical Lutheran Synod of America, named in the will, and herein referred to as the Synod, is a religious corporation organized under the laws of this state (Gen. Laws 1885, p. 194, c. 151), which authorizes such corporation to take by devise or bequest real and personal property, and hold the same for religious, charitable, or educational purposes. The Synod adopted, on June 7, 1906, a resolution purporting to be an acceptance of the provisions of the will as to it. The probate court of the county of Goodhue duly admitted the will to probate, and appointed the respondent herein, Alex Haller, as executor, who accepted the appointment and duly qualified. The residue of the estate, after the payment of debts and expenses of administration, was 258 acres of land in the county of Goodhue, of the value of $15,480, and personal property of the value of $10,821.23, and, on October 2, 1907, the probate court made its final decree of distribution of such residue, which was, so far as here material, to the effect following: It is adjudged that such residue be, and the same is hereby, assigned to and vested in the Synod, sole devisee and legatee of the testator, to have and hold the same, forever, for the purpose of erecting and maintaining an orphans' home as provided by the will, subject to the execution of the trust created and reposed in Prof. M. G. Hanson by the will, who is hereby authorized to carry out such trust, and the executor is hereby ordered to deliver the residue of the estate to him as such trustee. The appellant appealed from this decree to the district court of the county of Goodhue, which affirmed the decree. The appeal to this court is from an order of the district court denying the appellant's motion for a new trial.

The contention of the appellant, reduced to its lowest terms, is that the will is void because it attempted to create a trust which is invalid, and also attempted illegally to suspend the power of alienation. It will be helpful, before construing this will, to state the law applicable to the construction of wills, the creation of trusts, and the suspension of the power of alienation of land.

In construing a will, the intention of the testator, expressed therein, must prevail, if it be consistent with law. If the language of the will be reasonably susceptible of two constructions, one of which would invalidate the will and the other sustain it, the latter construction must be adopted. Simpson v. Cook, 24 Minn. 180;In re Swenson's Estate, 55 Minn. 300, 56 N. W. 1115;Yates v. Shern, 84 Minn. 161, 86 N. W. 1004.

An action or proceeding involving the validity of a will must be determined from the same viewpoint as if it had been brought at the time of the death of the testator; for its validity depends, not on what has happened since the testator's death, but on what might have happened. Matter of Wilcox, 194 N. Y. 288, 87 N. E. 497; Gray on Perpetuities, § 231.

There can be no valid suspension of the power of alienation of land, except where the period during which it may continue is defined with reference to the continuance of not more than two specified lives in being at the time the suspension commences, or, in other words, a devise of land, which suspends the absolute power of alienation for a fixed period, however short, without reference to lives in being, is void; for no suspension of the power of alienation is valid, unless it must in every contingency terminate within the period of two lives. Gen. St. 1894, § 4376; Rev. Laws 1905, § 3204; Simpson v. Cook, 24 Minn. 180;Greenwood v. Murray, 26 Minn. 259, 2 N. W. 945;Herzog v. Title Co., 177 N. Y. 86-99, 69 N....