40 41 tive is protected thereby. In case of an overpayment the probate court cannot enforce a refundment. A payment through mistake may be recovered in the district court by the representative in an action at law. In some states a recovery may be had though the mistake is one of law.42 45 44 1105. Recovery of legacy or distributive share-Action-Setoff-A legacy or distributive share cannot be recovered from a representative by action until there is a decree of distribution assigning it to the legatee or distributee.43 A legatee or distributee may sue a representative on a final decree of distribution to recover a legacy or distributive share and in such an action the decree is conclusive. No demand is necessary before suit. Interest is recoverable as damages. A legacy may be recovered as upon implied contract in an action in the nature of assumpsit. An agreement to refrain from legal proceedings to recover a legacy has been held to have a sufficient consideration.16 Plaintiff, the maker of a promissory note, paid it before it was due to defendant, who held it for the payee, and on whose representation that he had authority from the payee to receive such payment plaintiff relied. The defendant then delivered the note to plaintiff, who destroyed it. The payee had already, by her will, bequeathed the note to plaintiff; and, a few days after such payment, she died. She never authorized such payment, or ratified the same, and never received the money. Defendant was appointed her administrator, and paid the money to himself as such administrator. Plaintiff demanded a return of the money. Held, he is entitled to recover it back. A testator, after providing for his wife and other children, made a bequest to his insane daughter in these words: "I further give and bequeath the sum of one thousand dollars to my only other daughter (naming her), who is now in the Hospital for the Insane at St. Peter, this state, said amount to be paid her on the recovery of her sanity, provided that if she does not recover her reason or dies, then the amount is to be divided equally between her three children now living." Held, that the children are only entitled to the bequest 47 40 Young v. Thrasher, 48 Mo. App. 327; 18 Cyc. 632. 41 In re Underhill, 117 N. Y. 471, 22 N. E. 1120; Lang v. Stringer, 144 N. Y. 275, 39 N. E. 363. 42 Walker v. Hill, 17 Mass. 380 (action for money had and received); Mansfield v. Lynch, 59 Conn. 320 (mistake of law or fact); Kunkel v. Kunkel (Pa.) 110 Atl. 73; 13 Ency. Pl. & Pr. 16; 11 A. & E. Ency. of Law (2 ed.) 1179; 18 Cyc. 634; 24 C. J. 502; Woodward, Quasi Contracts, § 185; 32 Harv. L. Rev. 329. 43 Huntsman v. Hooper, 32 Minn. 163, 20 N. W. 127; State v. Germania Bank, 103 Minn. 129, 145, 114 N. W. 651; Wiley v. Lockwood (Minn.) 186 N. W. 699. See §§ 1060, 1087. 44 Sjoli v. Hogenson, 19 N. D. 82, 112 N. W. 1008; Melone v. Davis, 67 Cal. 279, 7 Pac. 703. See § 1124; 13 Ency. Pl. & Pr. 9. 45 Allen v. Edwards, 136 Mass. 138. See 13 Ency. Pl. & Pr. 10. 46 Thayer v. Pray, 111 Minn. 449, 127 N. W. 392. 47 Braithwait v. Bain, 66 Minn. 325, C9 N. W. 4. 48 in case their mother dies before recovering her reason, and that, until the possibility of her recovery is extinguished by her death, they cannot maintain an action to enforce the payment of the bequest to themselves. A complaint in an action against an administratrix and her bondsinen for failure to pay a distributive share held to state a cause of action.19 It is no defence to an action to recover a legacy against an administrator de bonis non, with the will annexed, that the original executor, who was also the residuary legatee, gave a bond to pay debts and legacies.50 In an action against a representative to recover a legacy or distributive share, a debt due from the plaintiff to the decedent may be set off against the legacy or distributive share. If there is a deficiency of assets, the setoff will apply to so much only of the claim upon the legacy or distributive share as shall be found to be justly recoverable upon a full settlement of the estate." If the debt is barred by the statute of limitations it cannot be set off.52 51 1106. Rights of creditors of distributees-The rights of creditors of distributees are subordinate to the claims of creditors of the decedent, duly proved and allowed, and to the charges and expenses of administration. 53 They are also subordinate to the claims of the estate against the distributees.54 Creditors of distributees cannot have the shares of the distributees assigned to them in the final decree of distribution.55 But they may appear at the hearing on the final settlement and assert their claims therein.56 They may sue the distributees pending administration proceedings and before a final decree of distribution. In proper cases they may attach or garnishee the interests of distributees before or after a final decree of distribution. If they recover and docket a judgment it will be a lien on the real estate which has been, or may thereafter be, assigned to the distributee. Execution may issue against the interest of a distributee even before a final decree of distribution, subject to administration proceedings.57 If they take an assignment of the shares of distributees they have a remedy thereon against the representative, if they notify him of the assignment.58 If a creditor of an heir recovers and dockets a judgment against him prior to the death of the ancestor the lien of the judgment attaches to the interest of the heir accruing after the death of the ancestor.59 Any surplus on a sale of real estate to pay claims against the estate must be applied to the 48 Mingo v. Huntington, 92 Minn. 13, 99 N. W. 45. 49 Miller v. Ganser, 87 Minn. 345, 92 N. W. 3. 50 Collins v. Collins, 140 Mass. 502, 5 N. E. 632. 51 Blackler v. Boot, 114 Mass. 24. 52 Kimball v. Schribner, 161 N. Y. S. 511. 53 Kolars v. Brown, 108 Minn. 60, 121 N. W. 229; 18 C. J. 965. See $$ 77, 1060, 1073. 54 See § 1093. 56 See § 1071. 57 See §§ 1134, 1135, 1070, 1137, 1140. 58 See § 1097. 59 In re Langevin's Will, 45 Minn. 429, 47 N. W. 1133. See § 1070. payment of a judgment obtained against an heir, and duly docketed after the death of the decedent and before the sale.60 If the interest of a distributee is of an equitable nature not subject to attachment it may be reached through a creditors' suit.1 PARTITION 1107. When authorized-Statute-When, upon the hearing of the petition for a decree of distribution, the estate to be assigned to two or more persons is in common and undivided, and the respective shares are not separated and distinguished, partition may be made on the petition of any person interested. Upon such petition being made, the court may appoint three disinterested persons as referees to make partition, and shall issue a warrant to them for that purpose. Unless otherwise directed by the court, the referees shall make partition of all the real estate situated within the state; but if there be real estate in different counties, the court may appoint different referees for each county, and in such case the real estate in each county shall be divided separately, as if there were no other estate to be divided by the court. Such referees shall have power, but shall not be required, to divide specific tracts. The probate court has no general jurisdiction over the partition of real estate. The proceeding authorized by the statute can only be had during administration proceedings and as preliminary to a final decree of distribution therein. After such a decree the probate court has no jurisdiction to entertain partition proceedings.63 62 1108. A cumulative remedy-The statutory remedy for partition in the probate court is not exclusive. Resort may be had to the district court. 64 1109. Effect of controversy as to shares-Our statute does not explicitly exclude cases where the shares are in dispute or uncertain. In Massachusetts there is such an exclusion, but even in such cases it is held there that the probate court may exercise jurisdiction by consent of the parties.65 1110. No sale authorized-No sale of the land is authorized in case an equitable division cannot be had." 60 Kolars v. Brown, 108 Minn. 60, 121 N. W. 229. 61 Merriam v. Wagener, 74 Minn. 215, 77 N. W. 44. 62 G. S. 1913, § 7408. See Gary, Probate Law (3 ed.) §§ 689-725; 21 A. & E. Ency. of Law (2 ed.) 1144; 41 Am. St. Rep. 140. 63 Hurley v. Hamilton, 37 Minn. 160, 33 N. W. 912; State v. Probate Court, 84 Minn. 289, 293, 87 N. W. 783. See Kelly v. Slack, 93 Minn. 489, 497, 101 N. W. 797. 64 Donnor v. Guartermas, 90 Ala. 164, 8 So. 715. 65 Ruggles v. Jewett, 213 Mass. 167, 99 N. E. 1093. 66 Kelly v. Slack, 93 Minn. 489, 495, 101 N. W. 797. 67 1111. Effect of conveyances by heirs-A conveyance by an heir prior to the proceeding probably ousts the probate court of jurisdiction." A conveyance by an heir pending partition proceedings in the probate court does not affect the jurisdiction of the court and the land should be set off and assigned as belonging to the heir.68 70 1112. Mode of setting off shares-Statute-The several shares in the real and personal estate shall be set off to each individual, in proportion to his right as determined by the court, by metes and bounds or descriptions, so that the same can be easily distinguished, unless any two or more of the parties interested consent to have their shares set off so as to be held by them in common and undivided."9 The referees are expressly authorized to divide specific tracts, but they are not required to do so. Where the land is partly improved and partly woodland the referees need not set off to each party an exact proportionate part of each kind."1 Where the estate consists of several separate tracts of land the referees need not set off to each cotenant a portion of every tract, but may assign to one or more or all a separate entire tract, according to the situation and circumstances of the estate.72 Shares are to be assigned according to their market value and not according to their area.73 1113. Indivisible estate-Assignment-Statute-When any such real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to share therein, who will accept it, and pay to the other parties interested their just proportion of the true value thereof, or secure the same to their satisfaction. In such case, the true value shall be ascertained by appraisers appointed by the court for that purpose.74 1114. Indivisible tract-Assignment-Statute-When any tract of land or tenement is of greater value than either party's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the referees to either of the parties who will accept it, and pay or secure to one or more of the others such sums as the referees award to make the partition equal, and they shall make their award accordingly. Such partition shall not be confirmed until the sums so awarded are paid to the parties entitled thereto or secured to their satisfaction.75 1115. Notice-Appointment of guardians or agents-Statute-Before partition is made the court shall appoint guardians for all minors and 67 Pond v. Pond, 13 Mass. 413. 68 Cook v. Davenport, 17 Mass. 345. See Farnham v. Thompson, 34 Minn. 330, 26 N. W 9; Dobberstein v. Murphy, 44 Minn. 526, 47 N. W. 171. 69 G. S. 1913, § 7409. 70 G. S. 1913, § 7408. 71 Buck v. Wolcott, 15 Gray (Mass.) 502. 72 Hagar v. Wiswall, 10 Pick. (Mass.) 152. 73 Petition of King, 129 Mass. 413, 415. 74 G. S. 1913, § 7410. 75 G. S. 1913, § 7411. insane persons interested in the estate to be divided for whom guardians have not already been appointed, and discreet persons as agents of parties who reside out of the state and are not otherwise represented. The warrant shall recite such appointments, and the referees shall give notice to all persons interested in the partition, their guardians or agents, of the time when they will proceed to make partition.76 77 1116. Report of referees-Confirmation-Decree-Statute-The referees shall make written report of their proceedings to the court; and the court may, for sufficient cause, set it aside, and appoint other referees, or direct the same referees to make another partition. When the report is confirmed it shall be recorded, and the court shall make a decree assigning the estate to the persons entitled thereto in accordance therewith. The mere assignment of portions of the property, in severalty, carries to each tenant the same estate in the premises set off to him that he had as a tenant in common of the whole property, and it is not necessary to use the word "heirs" if the tenancy in common is a fee simple. A decree of the probate court making partition among devisees and deciding that one of them holds a life estate in the part allotted to him, and acquiesced in by him, precludes him from thereafter asserting a different tenure." The court may annex reasonable easements to one part of the land and impose reasonable servitudes upon another part, for the benefit of the several owners, in the use of their respective shares of the property.80 1117. Expenses-How paid-Statute-If at the time of the partition or distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied to that purpose, the expenses of such partition or distribution may be paid by him, when it appears to the court just and equitable, and not inconsistent with the intention of the testator. But if there be no such effects the expenses shall be paid by the parties interested, in proportion to their respective shares or interests in the premises, as shall be determined by the court. If any person neglects to pay the sum so assessed against him, the court may issue execution therefor in favor of the person entitled thereto.8: 81 1118. Appointment of agent for non-resident-Statute-When an estate is assigned by decree of court, as herein provided, to any person residing out of the state, and having no agent therein, and it is necessary that some person be authorized to take possession and charge of the same for his benefit, the court may appoint an agent for that purpose, as well as to act for such absent person in the partition. Such agent shall give bond to the judge, to be approved by him, faithfully to manage and |