St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-08-22

fication of the District Courts
Judgment - Powers of a
Quorum of the Common Coun-
Gil.
The case of Marge, Hale ct al, re
spondents, against The City of st. Paul
ct al, defendants; William B. Hale ct
al, appellants, was the most interest
ing of the several cases decided by the
justices of the supreme court yesterday.
1t was an action brought in the district
court by the executors of the will of
Henry Hale, deceased. against the dev-
iseeS and legatees to secure judicial
determination as to the construction of
the will in certain particulars, and
hence as to the duties of the executors.
1t is related that the appraised value
of the estate. real and personal, was
Sl.2O5, 4S1.4O, but by the second item III
the will certain real and personal
property was given absolutely to the
wife, and the appraised value of the re-
mainder of this estate, with which this
controversy is connected, was real
estate, $7770,05O. and personal property.
There were Ell tumbTances amounting
TO S173,000. anC of this amount $4,000
became due in November, 1891. and
$4,000 will mature in August, 1898.
$4,000 in 1896, but this has been as
sumed by the widow and Will be paid
by her out Of her estate. The teStatOr
also owed unsecured debts which have
been paid out OF the PERSONAL estate.
The question at issue is whether the
debts aud the specific legacieS given are
to be paid only out OF the income OF the
estate, OF whether the principal or body
of the personal estate, and, If neceS-
Sarv, the real estate, may be apprOprl-
ated for the payment of the debts.
The will was construed by the district
cOlr THAT the debts were to be paid as
they fell due out of the income Of the
estate, and not out of the principal except
as qualified.
The conclusion of Justice Dickinson
is that the Judgment OF the district
court should be modified so as to con-
form to the construction of the will.
The form of the amended judgment to
be entered in the district court will be
settled before a judge of chat court.
The costs Of the appeal should be paid
out of the estate. The syllabus fol-
lows;
\ will disposing of large estate pro-
Vided for the estate being held in trust
period OF Twenty-Five years. before final
distribution to the resi- tuary legatees
and devISees.
There were debts to a large amount,
some of which greatly exceeded the
yearly income of the estate.
The testator gave TO various persons
and charities legacies of specific
amounts, mostly payable i'll ten annual
inStallmentS.
He then lin item 49, gave TO two
brothers and to his widow. each, for life
OF during the trust term Of twenty-five
years, One-fourth Of the met income o.
my estate, subject TO the payment of my
debts and the legacieS and InStallmentS
of legacieS above mentioned as they
shall fall due" and 10y item l9l he gave
to certain other kindred the remaining
one-iOurth of said net income, subject
to the payment of the debts and lCga-
cieS aforesaid"
The above recited provisions con-
Strued as subiecting the Income" and
not the ESTATE" to the payment of the
debts and fixed legacies: the remainder
of the income, after such application,
being the met income" bequeathed by
items Island 10 of the will.
Will further construed lother impor-
tant provisions being referred to- as con-
tempiating that the administration of
the estate during each year should be
treated as an entirety or by itself; each
years income being used first to pay the
annual inStailmentS, or the fixed lega-
cieS payable in that year, and the debts
which may fall due in the same year.
the remainder of that years income be-
Ing payable to the legatecS named In
items Is ana 10. The Will did not con-
template an accumulation or reservation
of any years income to pay iegacieS Or
debts to fall due in any succeeding
year.
1t did not contemplate that mortgaged
real estate should be the primary fund
for the payment of the mortgage debts.
A construction OF a will is not to be
preferred which greatly restricts, 10 the
advantage of more remote bene1iciarieS,
the provisions which may we'll be re-
garded as having been made in behalf
of nearer and more favored objects of
the teStatOrS bounty.
Stale of Minnesota, respondent. VS.. W. D.
Armstrong, appellant Order affirmed.
DICKINSON, j,
The validity of the action of COM
mon council OF city depending upon
the concurrence of four members, held
that the affirmative vote of three mem
berS upon proposition, and the an
nOuncement by the president zone of
the members OF the counciD that the
same was carried, Is to be regarded as
properly expressing the concurrence of
the presiding member with his as
SociateS as expressed i'll their vote
Such concurrence was further eX-
pressed by formal order of the council,
made at the same meeting, cmbodying
IA al
signed by the president ami the other
members.
The approval of the mayor of an
order of the council for the construction
of a sidewalk held unnecessary.
The council was not required to de-
termine separately the questions
whether the sidewalk would be a pub
lie convenience and whether the bene-
fits would Justify the expense.
hiram Berkey, appellant VS.. St Paul Ma.
uonal Bank et al. defendants; Nels Westir
ct al, respondents. Judgment affirmed.
DICKINSON, j.
In an equitable action bya judgment
creditor of the estate Of a deceased per
son to subject real property formerly
belonging 10 the estate, TO the satisfac-
ton of his Judgment, held that tho
plaintiff should be denied such relief
on the ground Oh his lacneS, the action
not being instituted until about sever
years after final adjudication which
determined the plaintiffs rights a:
against the estate, and the obligation
OF the executors TO pay the debt, such
delay not being justified, and the land.
row sought to be charged having beel
conveyed by the executors, and nndel
mesne cOnveyances having been pur
chased by the defendants, strangers t
the estate; and parts Of such lands hay
ing been improved by them.
The continued neglect of the plaintiff
70 enforce against the executors ant
their bondsmeu a judgment recovered
against them for their neglect or mis-
conduct in respect to the payment O
the plaintiffs debt, is an additional rea
son for refusing the relief sough
against these defendants.
Peter Wolford, appellant, VS.. Crystal LAX
Cemetery Association, respondent. Orde
affirmed DICElNSON T