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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.,
Rosa WEISKOPF et al., Respts.
*1. A decree of distribution by 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,
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 doubtful 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.
*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 Cox. 53 L. R. A. 884; and the case succeeding this one, of Talor v. Evans.
tract for the purchase 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. Enc. 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.
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
(July 10, 1895.)
APPEAL by plaintiff from an order of the in the case of unborn or afterborn heirs or
Hennepin County denying a new trial after verdict for defendants in an action brought to rescind a con
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;
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.
Harris v. Strodl, 132 N. Y. 392, 30 N. E. | Hooper, 32 Minn. 163, 20 N. W. 127; Re 962.
Mousseau, 30 Minn. 202, 14 N. W. 887; Balch v. Hooper, 32 Minn. 158, 20 N. W. 124.
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 Home 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.
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
This judgment construes the will of Leopold Weiskopf, determines and declares its effect, and assigns the whole estate in this land specifically.
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.
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.
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.
An estate for life, with remainder to persons named, constitutes and comprises the whole estate.
Swayne v. Lyon, 67 Pa. 436; Dobbs v. which is in truth a conclusion of law, that Norcross, 24 N. J. Eq. 327. inadvertence will not be suffered to destroy or impair the legal effect of the judgment.
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.
Davis v. Hudson, 29 Minn. 36, 11 N. W. 136; Child v. Morgan, 51 Minn. 116, 52 N. W. 1127.
2 Washb. Real Prop. 3d ed. 497, 498; Kent, Com. 9th ed. p. 227; Miller v. Caragher, 35 Hun, 485.
The law has committed all this jurisMcNamara v. Casserly, 61 Minn. 335, 63 diction to the probate court. The concluN. W. 880. sive presumption is that it will be honestly exercised.
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.
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.
The giving of notice to a nonresident is jurisdictional; and a failure to give it is fatal to the decree of distribution.
Thompson v. Myrick, 24 Minn. 4; Ames v. Slater, 27 Minn. 70, 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
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
If the probate judge has, by any inadvertence, named that a conclusion of fact
the widow, Rosa Weiskopf, and the remain- | of the residue of the estate in and by which, der in the children of the testator named after finding that the real estate in quesin his will. tion (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
Moore v. Lyons, 25 Wend. 119; Livingston 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.
Mitchell, J., delivered the opinion of the estate he devised to his children, Harry 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.
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, Defendants' contentions are (1) that this Samuel Weiskopf, Henry Weiskopf, David decree of distribution adjudges that the devWeiskopf, Bertha Weiskopf, Anna Markens isees named, to wit, the widow and seven (formerly Weiskopf), Georgiana Weiskopf, children, were entitled to the property, and and William Weiskopf, or to such of them that it assigned the whole estate in the lands as shall be living at the time of their said to them, and that such decree of distribumother, Rosa's, death, to them, their heirs, tion is conclusive and binding upon the executors, administrators, and assigns for whole world; (2) but, even if the decree is ever, to be equally divided between them, not conclusive and the question of the conshare and share alike,-the child or chil-struction of the will is still an open one, then dren of any deceased of our said children, upon the face of the will it devises a life should any be deceased at said time, to rep-estate in the lands to the widow, Rosa, and resent his or her parent, and be entitled a vested remainder to the seven children to take and receive the same shares therein named, share and share alike. On the other as their, his, or her respective parent or hand, plaintiff's contentions are: (1) That parents would be entitled to, if then living. the remainder-men under the will are, not (6) I give, devise, and bequeath all the seven children named, but such of them, the rest residue, and remainder of my es- and the children of any of them that have tate, of whatsoever kind or sort, and where- deceased, as may survive the widow; and soever situated not hereinbefore given and that the children, if any, of the deceased disposed of, unto my said children, to wit, children will take by virtue of the will, and Harry, David, Bertha, Samuel, Anna, Geor- not by inheritance from their deceased pargiana, and William, their heirs, executors, ents; hence, until the death of the widow, administrators, and assigns, to and for it will be impossible to determine who these them, respectively, share and share alike, remainder-men are. (2) That the decree of and to and for their respective use, abso- the probate court does not purport to aslutely and forever." sign 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
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
to the devisees named, it would not be bind- | terms of said will, which must mean as thus ing upon the unborn issue of deceased children, if any, who might be living at the death of the widow, and who would take as remainder-men under the will. (4) That. even if the title was in fact good, it was not marketable.
construed. The court then orders and adjudges that the above-described real estate (not a part of it, or a contingent remainder, or a vested remainder subject to defeasance, but a vested estate in the whole of it) be and the same hereby is, assigned to said devisees, that is, to the widow and all the seven children and not to such of them as should survive their mother, or to the children of such of them as might be then deceased. It is true he then adds, "according to the terms and provisions of said last will." etc.; but, in view of the adjudications which have preceded, this clearly means according to the terms and provisions of, the will as thus construed. The fact that this construction is called a finding of fact, instead of a conclusion of law; or that it is not preceded by the formal words "ordered and decreed," is of no importance. It is a clear and explicit adjudication of the main question presented to him, to wit, Who were entitled to the property under the terms of the will? This being determined, all that remained to be done was to assign it accordingly. The statute requires that "in such decree the court shall name the persons and the proportions or parts to which each is entitled." This the court has done, although perhaps not in the most formal manner. Taking the entire decree together, the force and effect of it is to assign a life estate to the widow and the remainder to the seven children named in the will and the decree, share and share alike. See 1 Freeman, Judgm. § 47, and cases cited.
Under the view we take of the case, it becomes unnecesary to consider what would be the proper construction of the will as an original question, for the reason that we are of opinion that the decree of the probate court must be construed as assigning the entire estate in the lands to the devisees named, and that, whether this was in accordance with the correct construction of the will or not, it is conclusive and binding upon "all parties interested in the estate of the deceased," whether in being at the time or not. The argument of counsel for plaintiff is that the only operative adjudication is the last clause, whereby it is ordered that the real estate be and hereby is assigned "to the said devisees, according to the terms and provisions of said last will and testament of the deceased;" that this does not attempt to define the nature or extent of the estate assigned, but merely refers back to the terms of the will itself. It seems to us that any such view of the meaning and effect of the decree is untenable. Whenever the jurisdiction of a court is prop. erly invoked it is the duty of the court to exercise that jurisdiction, and render an effective judgment upon the subject-matter brought before it. This must be presumed to have been what the court intended to do in this case. But, if plaintiff's contention is correct, then the decree amounted to an adjudication of nothing. Moreover, if plaintiff's construction of the will is correct, there could be no assignment of the prop erty until the death of the widow, for until that event occurred it could not be determined who a single one of the remaindermen would be. When the jurisdiction of the court was invoked in this instance it became his duty to construe the will, determine its legal effect, and assign the property in accordance with the terms of the will as thus construed. It seems to us that this is precisely what the court has done in this instance; and that there is no room for reasonable doubt, either as to how he construed the will, or as to the meaning and effect of the decree of assignment, when all parts of it are taken together. The court first construed the will as devising a life estate to the widow, Rosa, and the remainder to the seven children named, share and share alike. It then determines that these devises are valid, and that said devisees (the widow and seven children) are entitled to said real estate according to the
Whether this decree was in accordance with the correct construction of the will or not, it is binding and conclusive upon all persons interested in the estate of the deceased, whether under disability or not, or whether then in being or not. Greenwood v. Murray, 26 Minn. 259, 2 N. W. 945. Counsel admits the general rule, but insists that it is inapplicable to persons who were not born when the decree was rendered, and who would take, if at all, under the will, and not under or in privity with any person in being at the date of the decree,-that such persons cannot be parties to the proceeding, either in person or by representation, and hence are not bound by it. This argument is based upon a false conception of the nature of the proceedings. Proceedings in the probate court are not an action between party and party, but are in the nature of a proceeding in rem, acting directly on the res, which is the estate of the deceased. If the court had jurisdiction of the estate, and the jurisdiction is properly invoked, of which there is no question in this case, a decree of distribution is a judgment in rem, which conclusively determines the
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.
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 assignment of the whole estate in the property 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
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.
The last point made by plaintiff is that, although the title tendered him may be good in fact, yet it was involved in so much legal doubt as to be unmarketable, and therefore he was not bound to accept it. Although the contract only calls for a good title, yet we have no doubt that he was entitled not merely to a title good in fact, but to a marketable title. Neither do we assent to the distinction sought to be made by defendants' counsel between an action in equity to compel specific performance and an action at law to recover purchase money, or to recover back earnest money. A court refuses to compel specific performance on the ground that the title is unmarketable,