tion in bankruptcy, no reference was made to partnership assets and liabilities, although partnership debts were included in the schedule, and a discharge was asked from all debts provable against the petitioner's estate, he may not have a discharge from firm debts, although the firm is without assets and no longer exists, and the debts are barred by the statute of limitations. To accomplish that purpose in an individual proceeding, the court declares that the procedure should have been as pointed out in Re Laughlin (1899) 96 Fed. 591, supra, III., b, 2, (a).

M. M. M.

Henry E. LADD, Appt.,

v.

Rosa WEISKOPF et al., Respts.

(62 Minn. 29.)

*1. A decree of distribution by the probate court construed as assigning the entire estate in the property of the deceased to the persons therein named, to wit, a life estate to the widow and a vested remainder to seven others, share and share alike. 2. A decree of a probate court, having jurisdiction, assigning the residue of the estate of the deceased person, is conclusive upon all persons interested in the estate, whether then in being or not. It is in the nature of a judgment in rem, which binds all the world.

3. Where the contract between vendor and vendee calls for "good" title,

A

the vendee is entitled to a title that is "marketable," as well as good in fact. He is not bound to accept a title which is so doubt ful as to be unmarketable; and the rule is the same whether the action is one brought by the vendor to compel specific performance, or by the vendee to recover back his earnest money. But a title is not unmarketable, within the meaning of this rule, where no question of fact is involved, but only one of law, arising exclusively upon the construction of a record muniment of title, and all parties in interest are before the court, so that its decision will be a final determination of the matter. Hence, a doubt as to the construction of a decree of distribution by a probate court, which is conclusive upon all parties interested in the estate, will not render a title unmarketable within the meaning of the rule.

(July 10, 1895.)

PPEAL by plaintiff from an order of the District Court for Hennepin County denying a new trial after verdict for defendants in an action brought to rescind a con

*Headnotes by MITCHELL, J.

NOTE. As to what is a marketable title, see Moot v. Business Men's Invest. Asso. 45 L. R. A. 666; Baldwin v. Trimble, 36 L. R. A. 489 Moore v. Williams, 5 L. R. A. 654; Townshend v. Goodfellow, 3 L. R. A. 739; Kullmann v. Cox. 53 L. R. A. 884; and the case succeeding this one, of Talor v. Evans.

tract for the purchase of real estate because of a defect in defendants' title, and to recover purchase money paid upon the contract. Affirmed.

The facts are stated in the opinion. Messrs. Jackson & Atwater, for appellant:

Under the will of Leopold Weiskopf, the ultimate remander-men are such of the testator's children (and children of any deceased child) as may survive the testator's widow, Rosa. Until her death it will be impossible to determine who these remainder-men are.

Armstrong v. Armstrong, 54 Minn. 248. 55 N. W. 971; Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905; Radley v. Kuhn, 97 N. Y. 26; Wells v. Wells, 88 N. Y. 333; Monarque v. Monarque, 80 N. Y. 324; Teed v. Morton, 60 N. Y. 506; 20 Am. & Eng. Ene. Law, p. 838, notes, title Remainders; Harris v. Strodl, 132 N. Y. 392, 30 N. E. 962; Kilpatrick v. Barron, 125 N. Y. 751, 26 N. E. 925.

The title of the testator's children, and the title which would pass by their deed, cannot be a title in fee simple absolute, and is not, therefore, such title as the vendee had a right to require and receive under his contract.

Cogan v. Cook, 22 Minn. 137; Fleming v. Burnham, 100 N. Y. 1, 2 N. E. 905; Kilpatrick v. Barron, 125 N. Y. 751, 26 N. E. 925; Methodist Episcopal Church Home v. Thompson, 108 N. Y. 618, 15 N. E. 193; Armstrong v. Armstrong, 54 Minn. 248, 55. N. W. 971.

The executors in no manner represented these unborn grandchildren devisees; there is no privity between them, and they, the devisees, are not bound by the judgment.

Dale v. Rosevelt, 1 Paige, 35; Osgood v. Manhattan Co. 3 Cow. 622, 15 Am. Dec. 304; Mason v. Peter, 1 Munf. 446; Kent v. St. Michael Church, 136 N. Y. 10, 18 L. R. A. 331, 32 Am. St. Rep. 693, 32 N. E. 704; Monarque v. Monarque, 80 N. Y. 320; Davis v. Hudson, 29 Minn. 36, 11 N. E. 136.

A decree of distribution is not binding on heirs or devisees who were not personally served or present in court, and especially in the case of unborn or afterborn heirs or devisees.

Ruth v. Oberbrunner, 40 Wis. 238; Bresce v. Stiles, 22 Wis. 120; Black, Judgm. §§ 560, 638, 643; Brigham v. Fayerweather, 140 Mass. 411, 5 N. E. 265.

The purchaser is entitled to a marketable title. He should be protected against the risk suggested.

Moore v. Appleby, 108 N. Y. 241, 15 N. E. 377; Methodist Episcopal Church Home v. Thompson. 108 N. Y. 618. 15 N. E. 195;

A probate court has no jurisdiction to reform a will.

Sherwood v. Sherwood, 45 Wis. 357, 30 Am. Rep. 757; Christian v. Colbert, 33 Minn. 509, 24 N. W. 301.

The title was doubtful and not "marketable," and, as such, the purchaser ought not to be required to take it.

Moore v. Appleby, 108 N. Y. 241, 15 N. E. 377; Methodist Episcopal Church Homc v. Thompson, 108 N. Y. 618, 15 N. E. 195. The action is brought on in proper form. 15 Am. & Eng. Enc. Law, p. 640; 2 Pom. Eq. Jur. 849; Champlin v. Laytin, 1 Edw. Ch. 467; Boas v. Farrington, 85 Cal. 535, 24 Pac. 787.

On petition for rehearing.

Under a contract for the sale of real estate, the vendee has the right, not merely to have conveyed to him a good title, but an indubitable title.

Swayne v. Lyon, 67 Pa. 436; Dobbs v. Norcross, 24 N. J. Eq. 327.

The probate court has undoubted power to make such revision of its decree, and to make it even against purchasers, if they are properly served with notice of the application.

This judgment construes the will of Leopold Weiskopf, determines and declares its effect, and assigns the whole estate in this land specifically.

This judgment, standing unappealed from and unreversed, is conclusive and binding as the law of that case, whether or not the judgment is such as this court would have pronounced, upon a consideration of the original question of the construction of said will.

An estate for life, with remainder to persons named, constitutes and comprises the whole estate.

2 Washb. Real Prop. 3d ed. 497, 498; Kent, Com. 9th ed. p. 227; Miller v. Caragher, 35 Hun, 485.

If the probate judge has, by any inadvertence, named that a conclusion of fact which is in truth a conclusion of law, that inadvertence will not be suffered to destroy or impair the legal effect of the judgment.

Davis v. Hudson, 29 Minn. 36, 11 N. W. 136; Child v. Morgan, 51 Minn. 116, 52 N. W. 1127.

In what manner such power might be exercised, and how far its exercise would be approved by the various appellate courts through which the litigation might drag, would be a chance which the unfortunate purchaser would have to take.

The giving of notice to a nonresident is jurisdictional; and a failure to give it is fatal to the decree of distribution.

Ruth v. Oberbrunner, 40 Wis. 238.

It is because of the very doubt as to the construction which the court of last resort may place on ambiguous or uncertain language in a will that specific performance has been denied in a large number of adjudged

cases.

Messrs. Shaw & Cray, for respondents: The probate judgment adjudges and declares the legal effect of said will, and assigns the land in question in accordance with the legal effect, and vests in Rosa Weiskopf a life estate, and the remainder in the other devisees named, in undivided interests, share and share alike. This judgment is conclusive, and cannot be attacked collaterally.

Davis v. Hudson, 29 Minn. 27, 11 N. W. 136; State cx rel. Martin v. Ueland, 30 Minn. 277, 15 N. W. 245; Greenwood v. Murray, 26 Minn. 259, 2 N. W. 945; Wood v. Myrick, 16 Minn. 494, Gil. 447; Dayton v. Mintzer, 22 Minn. 393; Huntsman v.

With respect to the matter and property concerning which it adjudges, and upon which it operates, what it adjudges is binding and conclusive as against all persons then in being or afterwards to come into being; in other words, against the world.

Thompson v. Myrick, 24 Minn. 4; Ames v. Slater, 27 Minn. 70, 6 N. W. 418; Allis v. Davidson, 23 Minn. 442.

When the statute declares in terms that the final decree of the probate court in the assignment of an estate "shall be binding on all persons interested in the estate," it can mean nothing less than that all such persons are parties thereto, and to the proceeding in which such decree was rendered, and are bound by it.

Osgood v. Manhattan Co. 3 Cow. 622, 15 Am. Dec. 304; Mason v. Peter, 1 Munf. 446.

Upon the face of the will as to questions of original construction, those questions must be determined against the plaintiff, and in favor of the defendants.

The freehold can never be placed in abey

ance.

Lyle v. Richards, 9 Serg. & R. 322.

The interests in the remainder of this estate, as to the land in question, or that remainder, were vested. If vested, then the title to this land is now, under the true construction of said will, a life estate in

Moore v. Lyons, 25 Wend. 119; Living ston v. Greene, 52 N. Y. 118; Heilman v. Heilman, 129 Ind. 59, 28 N. E. 310; 2 Redf. Wills, 218; Harris v. Carpenter, 109 Ind. 540, 10 N. E. 422.

after finding that the real estate in question (specifically describing it) remained in the hands of the executors for distribution, further found, determined, and decreed "that by his said last will and testament testator devised the above-described parcels to Rosa Weiskopf for life; and the remainder therein and all said other described real

The question in this case is whether the title tendered by defendants to plaintiff was good. The facts are these: One Leopold Weiskopf died testate, and seised of certain real estate, including the tracts here involved. The material provisions of his will are as follows: (1) "I give, devise, and bequeath unto my devoted wife, Rosa Weiskopf, for and during the remainder of her natural life, all these certain lands and real estate situate in said county of Hennepin and state of Minnesota, described as follows: [Here follow descriptions of property, which include all the tracts in question except lot 12, block 5, Hancock & Rice's addition to Minneapolis.] And it is my will that, from and after the death of my said wife, Rosa, and I hereby direct, give, devise, and bequeath, upon her decease, all the above-mentioned real and personal property unto our beloved children, Samuel Weiskopf, Henry Weiskopf, David Weiskopf, Bertha Weiskopf, Anna Markens (formerly Weiskopf), Georgiana Weiskopf, and William Weiskopf, or to such of them as shall be living at the time of their said mother, Rosa's, death, to them, their heirs, executors, administrators, and assigns for ever, to be equally divided between them, share and share alike, the child or children of any deceased of our said children, should any be deceased at said time, to represent his or her parent, and be entitled to take and receive the same shares therein as their, his, or her respective parent or parents would be entitled to, if then living. (6) I give, devise, and bequeath all the rest residue, and remainder of my estate, of whatsoever kind or sort, and wheresoever situated not hereinbefore given and disposed of, unto my said children, to wit, Harry, David, Bertha, Samuel, Anna, Georgiana, and William, their heirs, executors, administrators, and assigns, to and for them, respectively, share and share alike, and to and for their respective use, absolutely and forever."

The will was duly proved. After payment of all claims against the estate, expenses of administration, and all specific and general legacies, the probate court, upon application of the executors, and upon due notice, made a decree of distribution

Weiskopf, David Weiskopf, Bertha Weiskopf, Samuel Weiskopf, Anna Markens, Georgina or Georgiana Weiskopf, and William Weiskopf, share and share alike. As conclusions of law, the court finds that said devises are all valid and operative, and that the said devisees are entitled to said real estate according to the terms of said will. On motion of Messrs. Shaw & Cray, attorneys for said petitioners, it is ordered, adjudged, and decreed that the above-described real estate be, and the same hereby is, assigned to the said devisees, according to the terms and provisions of the said last will and testament of the deceased." This decree was rendered in 1886, and remains in full force, and has never been appealed from. Rosa, the widow of the testator, and all of his seven children named in the will, are still living; and it is their title, or title derived from them, which was tendered to plaintiff.

Defendants' contentions are (1) that this decree of distribution adjudges that the devisees named, to wit, the widow and seven children, were entitled to the property, and that it assigned the whole estate in the lands to them, and that such decree of distribution is conclusive and binding upon the whole world; (2) but, even if the decree is not conclusive and the question of the construction of the will is still an open one, then upon the face of the will it devises a life estate in the lands to the widow, Rosa, and a vested remainder to the seven children named, share and share alike. On the other hand, plaintiff's contentions are: (1) That the remainder-men under the will are, not the seven children named, but such of them, and the children of any of them that have deceased, as may survive the widow; and that the children, if any, of the deceased children will take by virtue of the will, and not by inheritance from their deceased parents; hence, until the death of the widow, it will be impossible to determine who these remainder-men are. (2) That the decree of the probate court does not purport to assign the whole estate in the land to the dev isees named, but merely assigns it to them according to the terms and provisions of the will; so that we are referred back to the will to ascertain how the property is devised. (3) But, even if the decree did assume to assign the entire estate in the land

right of all parties interested in the estate just as fully as a decree in admiralty or any other judgment in rem. It is on this ground that it has been held that, as respects proceedings for the probate of wills, or on the administration of the estates of deceased persons, it is not necessary to appoint a guardian for minors interested in the estate. Re Mousseau, 30 Minn. 202, 14 N. W. 887; Huntsman v. Hooper, 32 Minn. 163, 20 N. W. 127. There is no difference in principle between the case of persons in being who are under disability and persons yet unborn. The logic of counsel's argument would be equally applicable to any other decree or order of the probate court affecting the estate of the testator, as, for example admitting his will to probate; and the result would be that nothing could ever be conclusively determined as to the estate of a deceased person, for often it could not be positively assured that some person might not afterwards come into being who would be interested in the estate.

One of the tracts of which the testator died seised, and the title to which is here involved, is lot 12, block 5, in Hancock & Rice's addition to Minneapolis. This is not included in the descriptions contained in the second-the first above quoted-par. agraph of the will; but there is included a description of lot 8, block 5, in the same addition; and the probate court, in the decree of distribution, finds that this was a mistake in the will, and that what the testator intended to devise was lot 12. The point is made that a probate court has no power to reform a will. This matter is wholly immaterial, for the reason that, if lot 12 did not pass under the specific devise in paragraph 2, it did pass to the same parties under the general residuary devise in paragraph 6 of the will.

There is nothing in the point that the deed of Harry Weiskopf (who was not a party to the contract) to his codevisee Georgiana Weiskopf did not convey to her all his interest or estate in the premises.

not because the granting of such relief is a matter in the discretion of the court, but because the vendee has not been tendered what he is entitled to according to the terms of his contract. And, if the title tendered is not what he is entitled to, why should he be compelled to pay for what he is not bound to accept? The rule is the same whether the action is one by the vendor to compel specific performance, or one by him to recover purchase money, or one by the vendee to recover back his earnest money. In each case the question is, Was the title marketable? The distinction between actions at law and actions in equity, made in Romilly v. James, 6 Taunt. 263, if it ever was good law, is not so now under our judicial system, where all distinctions between courts of equity and courts of law have been done away with. Methodist Episcopal Church Home v. Thompson, 108 N. Y. 618, 15 N. E. 193; Moore v. Williams, 115 N. Y. 586, 5 L. R. A. 654, 12 Am. St. Rep. 844, 22 N. E. 233. Therefore the question, in this action by the vendee to recover back earnest money, is, Was the title tendered such that, if an action had been brought by the vendor, the court would have decreed specific performance? We are of opinion that it was. The validity of the title did not depend upon matters of fact not of record. The title rested wholly upon record evidence. Hence the doubt, if any, was one purely of law, as to the construction and effect of these records. If the insufficiency of the title had depended upon the construction of the will, it would have been unquestionably doubtful and unmarketable. But it wholly depended upon the effect of the decree of distribution. The mere fact that laymen, or even some lawyers, may have had some doubt as to the conclusiveness of the decrees of the probate court upon persons not in being who may be interested in the estate of a deceased person, was not such a doubt as to render the title unmarketable in any legal sense, or constitute any ground for a court refusing specific performance. The only possible legal doubt worthy of consideration is as to the sufficiency of the decree of distribution, in form and substance, to constitute an as

erty to the devisees named. Generally, where courts have refused to compel specific performance on the ground of doubt on a question of law arising upon the construction or legal effect of record muniments of title, it has been where not only was the doubt a grave one, but where there were interested parties not before the court, and consequently not bound by its decision, who might afterwards subject the vendee to vexatious and expensive litigation. Except under such circumstances, the courts have usu