Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-04-01
Supreme Court
THE COURT:

supreme OOU1
IN THE SUPREME COURT;
STATE OF NORTH DAKOTA
Savings Deposit Bank, a domestic
corporation, plaintiff and appellant,
VS.. Olo EllingsOn, Annie Ellingson,
Minneapolis Iron Store company, q
corporation, Lewis q. Anderson,
Louisa Anderson, Chester Cranmer,
T.. T. Fisher and all othnr persons
claiming any right; title or interest In
or lien OF incumbrance upon the real
estate described in plaintiffs COM
plant, and all their unknown heirs.
defendants and respondents.
Plaintiff was owner of a prOlmis0ry
note and interest coupons secured by
real estate mortgage The first III
stallment of interest being unpaid,
foreclosure was lad Under the power
of sale, and the certificate later as.
signed to. defendant B., who obtaiaed
sheriff's deed. Later plaintiff fore.
closed upon the principal mortgage
and the remaining interest coupons.
and in due course received sherin's
deed. The assignment to E. contain.
ed the express stipulation, this as
signment is made without recourse
I*** and also made subject to the
balance Of the mortgage not. included
in foreclosure" Held: =: 3
/. That Notwithstanding the sta.
tutes of the state, or terms Of the
mortgage, the parties had determined
by contract, the priority Of their res
pective. claims and defendant Els In.
terest was subordinate to that. of
plaintiff, who after the foreclosure
became the absolute owner Of the
premises.
(Syllabus. by. the Coprt..)
Appeal from the District Court of
Mqurtrail county Franh FL Fisk,
Judge. sS Il
Reversed. Opinion Of the court by
Burke, J.. 4
George A. MCGEE, of Minot, N. D.,
attorney for plaintiff and appellant.
Middaugh & Hunt, of DEVILS Lake,
N. D., attorneys for defendants and
respondents.
IN THE SUPREME COURT,
STATE OF NORTH DAKOTA
In the matter of the estate of John
d. Gray deceased. John Henderson.
ct. al, petitioners and appellants, VS..
Julia Ann Gray, ct al, respondents.
l. In paragraph 2 of his will, tes-
tator devised a life estate In all his
real property to his wife, and in para
graph 3 he made the following de-
wise to his son Arthur:
Subject to the aforesaid life in
terest of my wife, Julia Ann Gray,
and the following further provisions:
"a" That within Awo years next
succeeding the deash Of my wife,
Julia Ann Gray, he pay, or. cause to
be paid, unto my daughter, Ruth Be-
ledl, or her heirs. the sum of fifteen
hundred dollars ($1500.O0). (b) That
he pay or cause to be paid unto my
daughter Myla Pieldman, Or her
heirs. within two years next succeed
ing the death of my wife, Julia Ann
Gray, the sum of fifteen hundred
dollars ($1. 500. 100. will and be-
queath unto my son., Arthur Pierce
Gray, or his heirs, the north ole-halt
Of section twenty-eight, township one
hundred forty, range sixty"
No provision is made in the will for
a devise over in the event Arthur
should decline to accept such devise.
Held: constituting the will in its en-
tirety, that the testator's Intention
was to vest in such son al uncondi-
tional estate in such property at MS
death subject tc the life estate In
his widow, and subject further to a
charge impressed thereol In favor
Of his two daughters, Ruth and Myra,
as security for the payment to each
within two years from the death OF
his widow of the legacy therein be
queathed.
2. Such devise to the son not be-
ing made subject to a condition pre-
cendent, there is no bass whatever
for the contention of respondents
that the same operates to suspend
the power Of alienation
3. Certain well settled rules OF
construction are referred to and ap-
PllSu I'LL Iuc UplulOlt, 0ai
designed as aids to the courts In ae-
termining and giving effect TO the
real intent of the testator, which IN
ayy cases is the sole object in view.
(Syllabus by the Court
Appeal from district court, Barnes
county; j.. A. C0ffey. j.
From a final order adjudging old
certain provisions of a will devising
real properly, upon the ground that
the same operate to unlawtully sus'
pend the power of the pc
%lttoners for the probate oftSuch
will, appeal.
Reversed. Opinion Of the court by
Fisk, J..
Page & Englert, Valley City, N. D..
for appellants.
Taylor Crum. Fargo, N. D.. for res
j, pendent: