Sorenson v. Carey
| Decision Date | 17 November 1905 |
| Docket Number | 14,453 - (101) |
| Citation | 104 N.W. 958,96 Minn. 202 |
| Parties | THEODORE E. SORENSON v. EDWARD CAREY and Others |
| Court | Minnesota Supreme Court |
Action of ejectment in the district court for Fillmore county by Theodore E. Sorenson, as executor of the will of Albert Olson, deceased. From an order, Kingsley, J., sustaining a general demurrer to the complaint, plaintiff appealed. Reversed.
Will -- Election by Wife.
By the last will and testament of the husband he devised a life estate in lands belonging to his wife to her, together with certain personal property in value and amount exceeding that which she would have been entitled to under the statute, and directed that after the death of his wife the land and remaining personal property should be disposed of by his executor, and the proceeds divided equally between his brothers and sisters and the brothers and sisters of his wife. There were no children. The wife expressly assented to the terms and provisions of the will by indorsement thereon at the time it was executed. Held, following Brown v Brown, 42 Minn. 270, that upon the death of the husband the wife was required to elect whether to accept or reject the provisions of the will, and that if she elected to abide thereby the will was effective as a transfer and disposal of her land; and held, further, that her express assent to the terms of the will at the time it was made, coupled with the fact that after the death of her husband she appropriated all his personal property to her own use, amounted in contemplation of law to an election to abide by the will.
Description of Land.
The will involved in this litigation purported to devise and dispose of "my farm, consisting of about ninety-five acres, in Fillmore county," and other property. Held respecting the land embraced within the designation "my farm," that the description thereof is not so indefinite as to render the will void, but ambiguous to the extent that extrinsic evidence is admissible to identify the particular land intended to be disposed of.
H. S. Bassett and M. D. Halloran, for appellant.
Gray & Thompson, for respondents.
Appeal from an order sustaining a general demurrer to plaintiff's complaint. The facts disclosed by the complaint are in substance as follows: On January 28, 1901, Albert Olson made and executed his last will and testament. The second subdivision thereof, being the portion here material, is as follows:
Second. After the payment of lawful debts and funeral expenses I give and bequeath to my wife, Christine Olson, the use of my farm, consisting of about ninety-five acres situated in the county of Fillmore and state of Minnesota, during her life; also all cattle, horses, and swine of every kind, and all the grain of every kind, whether growing in the field or harvested or in the granary or cribs or barns; and also all household goods and furniture.
The will directed the executor to take possession of all real and personal property disposed of by the will, and hold and care for it to the best practical advantage during the life of his wife, and to provide for her care, comfort, and support; and upon her death to dispose of the entire estate and distribute it in the manner therein provided, namely, $100 to the United Norwegian Lutheran Church of America; $100 to the Norwegian Lutheran Cemetery, belonging to the Root Prairie Norwegian Lutheran Church; and all the rest and remainder to be divided equally between his brother and sister, and his wife's brothers and sisters, and the children of any deceased brother or sister.
For a good many years prior to the execution of the will Olson and his wife had resided upon a tract of land in Fillmore county, the title to which was then in the wife, and the complaint alleges that the tract so owned and occupied was the farm referred to in the will; that it was understood and agreed between the husband and wife that the land and all other property belonging to the parties should descend to the brothers and sisters of each, and to carry out this understanding the husband made the will mentioned; and that to effectuate it the wife, at the time it was executed, indorsed thereon the following:
Be it known that I, Christine Olson, wife of the above-named testator, Hallor Olson, have heard read and explained to me all the provisions made for me in the foregoing will, and, being satisfied therewith, do hereby approve and accept the same, and do hereby assent to all the terms and conditions thereof.
The testator was at the date of the will seventy-five, and his wife seventy-three, years of age. Some time after the execution of the will, the testator died, and the widow, remaining in possession of the farm, appropriated to her own use the personal property then belonging to the deceased, amounting in value, as alleged in the complaint, to the sum of $1,000. Within a year after the death of the husband the widow married defendant Edward Carey, and continued thereafter until the time of her death to reside with him upon the farm. Subsequent to her marriage with Carey she conveyed the land in question to A. E. Gray, who in turn conveyed the same to defendants Ellen Dolan and Alice Powers, daughters of Carey. Subsequent to the execution of the deed to Gray Mrs. Carey died. The will of her former husband was not probated during her lifetime, and, as stated, she continued after the death of her husband in possession of the farm and appropriated the personal property left by him to her own use. Subsequent to her death the will was duly admitted to probate by the probate court of Fillmore county, plaintiff named as executor, and as such he brought this action against Edward Carey, as well as Alice Powers and Ellen Dolan and their husbands, to recover possession of the land and the value of the personal property alleged to have been converted.
The complaint is very full, and sets out the facts in detail. At the time the demurrer came on for hearing in the court below, the parties entered into a stipulation as follows:
It is therefore hereby stipulated and agreed by and between the plaintiff and the defendants in said action that the court, in considering the demurrer of the defendants to said complaint upon the grounds that the same does not state facts sufficient to constitute a cause of action, may and shall only consider and pass upon the question whether or not said complaint states facts sufficient to show that plaintiff, as executor of said deceased, has the right to said real estate, to be by him disposed of as in said will provided, and that said land is not to be considered as held in trust by said Christine for said Albert at the time said will was made, but as her land in fee at that time.
As we construe this stipulation, the sole question presented for consideration is whether the plaintiff, under the allegations of the complaint, which are admitted to be true by the demurrer, is entitled to the possession of the land as executor of deceased, Albert Olson. All questions pertaining to the alleged conversion of the personal property were eliminated from the case by the stipulation.
Two questions are involved in the determination of the case, namely: (1) Whether the real estate mentioned in the will may be identified by parol proof; and (2) whether the widow of Olson was, under the facts stated in the complaint, bound and concluded by the disposition there made of her real estate.
1. It will be noticed that the will by its terms devised to his wife "the use of my farm, consisting of about ninety-five acres situated in the county of Fillmore * * * during her life," and directed that upon her death the same be sold by the executor and proceeds divided between the heirs of both husband and wife. The land is not described by government subdivisions, or otherwise definitely designated but it appears from the complaint that the farm then occupied by the parties, the title to which was in fact in the name of the wife, was the only land owned by either party at the time. The husband at all times treated the land as his own, operated, managed, and referred to it as his farm, and it is contended by appellant that the case is one in which extrinsic evidence is admissible to identify the subject-matter of the will. It is apparent that the will is indefinite and ambiguous -- not so indefinite as to be void, but susceptible of proof for the purpose of identifying the...
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