Washburn v. Van Steenwyk

• Decision Date: 21 July 1884
• Citation: 20 N.W. 324,32 Minn. 336
• Parties: Jeanette Washburn, by her Guardian, v. Gysbert Van Steenwyk and others, Executors
• Court: Minnesota Supreme Court

20 N.W. 324

32 Minn. 336

Jeanette Washburn, by her Guardian, v. Gysbert Van Steenwyk and others, Executors

Supreme Court of Minnesota

July 21, 1884

Cadwallader C. Washburn, of La Crosse, Wisconsin, died May 14, 1882, having made his last will on December 13, 1881, in which he named the respondents Gysbert Van Steenwyk, Charles Payson and Charles J. Martin as his executors. The will was proved in Wisconsin July 5, 1882, and was admitted to probate in Hennepin county, in this state, on August 28, 1882, and the executors named in the will were duly appointed and qualified as executors, and received letters testamentary, in each of these states.

The testator never resided in Minnesota. He left a widow, the appellant Jeanette Washburn, and two children. The widow is and for more than 20 years has been insane, without any lucid interval. Her domicile has always been in Wisconsin, and she has never been within the state of Minnesota. In August 1882, George K. Chase was by the proper court in Wisconsin and by the probate court of Hennepin county, appointed her guardian, and duly qualified as such.

The testator's estate was of the clear value of $ 1,500,000 and comprised real property in Minnesota of the value of $ 787,300, consisting chiefly of large flouring-mills, operated by water-power, in the city of Minneapolis, Hennepin county and rights appertaining thereto. His personal property was ample for payment of all his debts. His real estate in Minnesota was all acquired after his marriage with the appellant, and prior to the year 1875. All his estate is disposed of by the will. After directing payment of debts, the testator, in the second clause of his will, made the following provision for his widow: "Second. I direct my executors to bear constantly in mind the wants of my wife, and to set aside, use and expend whatever moneys may be necessary, consistently with her condition, to provide for her comfort and physical health; and I place no limit upon the sums which they may spend for the purposes indicated." The testator then created certain trusts, founded certain charities, (among them, "The Washburn Memorial Orphan Asylum," at Minneapolis, which he endowed with $ 375,000, and the "La Crosse Public Library," with an endowment of $ 50,000,) made many bequests to his children and relatives, gave his executors power to manage and carry on his business until his estate should be settled, (which he contemplated would be at the end of five years,) and finally disposed of the residue of his estate, one half to his two daughters and one half to his brothers.

By the laws of Wisconsin, a widow has dower, substantially as at common law, in her husband's lands, (R. S. § 2159,) but by the following sections she is required to elect between the provision made for her by her husband's will, and that made for her by the law:

"Sec. 2171. If any lands be devised to a woman, or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will claim the share of his estate provided in the next section; but she shall not be entitled to both unless it plainly appears by the will to have been so intended by the testator.

"Sec. 2172. When a widow shall be entitled to an election under either of the last two preceding sections, she shall be deemed to have elected to take such jointure, devise, or other provision, unless within one year after the death of her husband she files in the court having jurisdiction of the settlement of his estate notice in writing that she elects to take the provision made for her by law, instead of such jointure, devise, or other provision; and, upon filing such notice, she shall be entitled to the same dower in his lands, and the same rights to the homestead, and the same share of his personal estate, as if he had died intestate. * * *"

Until 1875 the statute of this state in respect to dower, and election by the widow was similar to that of Wisconsin. Gen. St. 1866, c. 48, §§ 1, 18, 19. Dower was abolished, and chapter 48 expressly repealed, by laws 1875, c. 40, §§ 1, 5. In 1876, a statute of descents was passed, providing as follows, (Laws 1876, c. 37, § 3; Gen. St. 1878, c. 46, § 3:)

"Such surviving husband or wife shall also be entitled to and shall hold in fee-simple, or by such inferior tenure as the deceased was at any time during coverture seized or possessed thereof, one equal, undivided one-third of all other lands of which the deceased was at any time during coverture seized or possessed, free from any testamentary or other disposition thereof to which such survivor shall not have assented in writing. * * *"

There is no statutory provision concerning election by the surviving husband or wife.

On November 23, 1882, the guardian of the widow filed in the proper probate court of Wisconsin a notice in writing that she elected to take the provision made for her by law instead of that made for her by the will. Thereupon the executors, on December 5, 1882, brought suit in the circuit court for La Crosse county, Wisconsin, against the widow, her guardian, the daughters of the testator, and all the trustees and beneficiaries named in the will, praying for a construction of the will, and among other things that the court define the rights of the insane widow, and determine whether the widow, "being insane, shall take under the provisions of the will, or against the will?" and whether she "is entitled to one-third of the land of which her husband was seized during coverture in the state of Minnesota, without an election?" and "if the widow must elect, she being insane, by whom or how shall the election be made? If by the court, what shall the election be?"

The circuit court in which the suit was brought is a court of general jurisdiction, and had jurisdiction of the subject-matter of the suit. All the defendants appeared, and the widow, by her guardian, answered the complaint, and such proceedings were thereafter had that on May 14, 1883, it was adjudged that the direction to the executors in the second clause of the will was not such a provision for the widow as to put her to her election, and that she was entitled to take whatever benefits accrue to her under that direction and also her legal share in the testator's property, and there was adjudged to her dower in the real estate in Wisconsin and one-third of the personalty.

From this judgment the executors appealed to the supreme court of Wisconsin, where the cause was heard and such proceedings had that on November 20, 1883, the judgment of the circuit court was reversed, and the cause remanded to the circuit court, with directions to enter a judgment in accordance with the opinion of the supreme court. In that opinion the court held (1) that the provision in the second clause of the will was intended to be in lieu of the widow's dower and her one-third of the personal estate; (2) that the statute requiring election applies to an insane widow; (3) that the election should be made by the court, and not by the guardian; and the court thereupon elected for her the provision in the will "as being on the whole the best and most advantageous for her interest and welfare." The case is reported as Van Steenwyck v. Washburn, 59 Wis. 483.

After the executors had brought their suit (on December 5, 1882,) in the Wisconsin circuit court, and on December 15, 1882, the guardian, on behalf of the widow, presented to the probate court of Hennepin county a petition, setting forth that the testator's debts had all been paid; that his estate, after payment of debts, is of the net value of about $ 1,700,000, and that the real estate in Hennepin county (fully described) is of the value of about $ 900,000, and praying that an undivided one-third of such real estate be assigned to him by metes and bounds, or through a sale thereof or otherwise, as the court should decree; and that the executors be required to deliver to him possession of the real estate so assigned, and account for and pay over to him one-third of the rents, issues and profits of the real estate while in their possession. The petition also shows that on December 11, 1882, the guardian had filed in the same court an instrument, signed by him in the name of the widow and by himself as her guardian, renouncing all benefits of the will, and that the guardian had elected for her, both in this state and in Wisconsin, to take her legal share and renounce all testamentary provisions, and prays that if the court should adjudge that the petitioner is put to an election, the court will adjudge that she has elected to take against the will, or will make, or authorize her guardian to make, such election for her.

The executors obtained from this court a writ of prohibition, restraining the probate court from acting on this petition, which writ was afterwards (and in March, 1883,) quashed. See State v. Ueland, 30 Minn. 277. They then answered the petition, pleading, among other things, the suit then pending and undetermined in the circuit court of Wisconsin, and praying that the hearing on the petition be postponed until that action should be determined. A hearing was however had in the probate court, on April 18, 1883, and on May 11, 1883, a decision was made thereon, declaring the widow required to elect, and that the court should make the election for her; electing that she take one-third of the real estate in Hennepin county, and assigning to her an undivided one-third of all such real estate. A decree in accordance with this decision was entered June 2, 1883.

From this decree the executors appealed to the district court for Hennepin county, where they filed, (on November 30, 1883,) a supplemental answer,...