149. Posthumous children-Statute-If any child of a testator, born after the death of such testator, has no provision made for him by his father in his will or otherwise, he shall take the same share of his father's estate that he would have taken if the father had died intestate, unless it appears that such omission was intentional.81 Since the amendment of 1915 a parent may entirely disinherit a posthumous child, if he clearly expresses his intention to do so in his will.82 A child born after the death of a testator unprovided for in the will takes by inheritance as heir at law. As to his share the will is annulled and the testator dies intestate. The child takes subject to the statutory interest of the surviving spouse.83 Any provision, great or small, equal or unequal, vested or contingent, present or future, is sufficient.84 A vested remainder is a sufficient provision.85 A contingent remainder is a sufficient provision.86 A will making a bequest to a wife and giving all the rest of the property to a trustee to pay the whole income to the wife during life, and the reversion to those who at her death might be his heirs at law by blood, held to make a sufficient provision. A devise by a testator to his wife of all his real estate to have and to hold until the youngest child, if any be born, attained the age of twenty-one years, and in case no children were living at his death, to his wife, unless she remarried, held to make a sufficient provision.ss Where a testator gave all the residue of his estate to his wife, expressing confidence that she would provide for their children, they then having three, another child, born after the death of the testator, was held entitled to the benefit of the statute.8 89 87 150. Same-Conflict of laws-The child of a non-resident is within the protection of the statute so far as realty is concerned, but not as to personalty.90 90 151. Same-From what estate share taken-Statute-If an after-born child, or a child or the issue of a child omitted in the will, takes a portion of a testator's estate under the provisions of §§ 7259, 7260 (147, 149 supra), such portion shall first be taken from the estate not disposed of by will, if any; if that be insufficient, so much as is necessary shall be 81 G. S. 1913, § 7259, as amended by Laws 1915, c. 343. See 27 A. & E. Ency. of Law (2 ed.) 316; 14 Cyc. 56; 18 C. J. 827; 115 Am. St. Rep. 586; 18 A. L. R. 8 (posthumous illegitimate children). 82 See Prentiss v. Prentiss, 14 Minn. 18 (5). 83 Young v. Blake, 148 N. Y. S. 557. 84 In re Newlin's Estate, 209 Pa. 456, 58 Atl. 846. See 43 L. R. A. (N. S.) 1195; 14 Cyc. 57. 85 Allison v. Allison's Executors, 101 Va. 537, 48 S. E. 904. 86 Verrinder v. Winter, 98 Wis. 287, 73 N. W. 1007; McLean v. McLean, 207 N 88 In re Donges' Estate, 103 Wis. 497, 79 N. W. 786. 89 Crocker v. Mulligan, 139 N. Y. S. 381. 90 Eyre v. Storer, 37 N. H. 114; Bloomer v. Bloomer, 2 Bradf. (N. Y.) 339; Van Wickle v. Van Wickle, 59 N. J. Eq. 317, 44 Atl. 877. taken from all the devisees and legatees in proportion to the value of what they respectively receive under such will. But if the obvious intention of the testator in relation to some specific devise, bequest, or other provision of the will would thereby be defeated, then such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment be adopted, in the discretion of the court.91 152. Contracts to devise or bequeath property-A person may obligate himself by contract to make his will in a particular way, or to give certain specific property to a particular person, so as to bind his estate. But courts will be strict in looking into the nature and circumstances of such contracts and require satisfactory evidence of their fairness and justice. The remedy for a breach of such a contract depends upon the facts of the particular case, and may be either at law for damages or in equity for specific performance, or in presenting a claim to the probate court. If the contract is an oral one to devise land, and is reasonably certain as to its subject-matter and stipulations, equity will decree specific performance if there has been a part performance sufficient to take the case out of the statute of frauds. If the consideration for the contract is labor and services which may be estimated, and their value liquidated in money, so as reasonably to make the promisee whole, specific performance will not be decreed. But if the consideration for the contract is that the promisee shall assume a peculiar and domestic relation to the promisor, and render him service of such a peculiar character that it is practically impossible to estimate their value by any pecuniary standard, specific performance will be decreed. Specific performance must be sought in the district court and not in the probate court.92 The contract cannot be enforced by the probate court in making a final decree of distribution.93 It may be enforced by the heirs of the prom 91 G. S. 1913, § 7261. See In re Smith's Estate, 145 Cal. 118, 78 Pac. 369; 18 C. J. 842. 92 Schwab v. Pierro, 43 Minn. 520, 46 N. W. 71; Newton v. Newton, 46 Minn. 33, 48 N. W. 450; Kleeberg v. Schrader, 69 Minn. 136, 72 N. W. 59; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4; Stellmacher v. Bruder, 89 Minn. 507, 95 N. W. 324; Laird v. Vila, 93 Minn. 45, 100 N. W. 656; Richardson v. Richardson, 114 Minn. 12, 130 N. W. 4; Haubrich v. Haubrich, 118 Minn. 394, 136 N. W. 1025; Fiske v. Lawton, 124 Minn. 85, 144 N. W. 455; Brasch v. Reeves, 124 Minn. 114, 144 N. W. 744; Robertson v. Corcoran, 125 Minn. 118, 145 N. W. 812; Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741; Kins v. Ginzky, 135 Minn. 327, 160 N. W. 868; Lindell v. Lindell, 135 Minn. 368, 160 N. W. 1031; Wold v. Wold, 138 Minn. 409, 165 N. W. 229; Greenfield v. Peterson, 141 Minn. 475, 170 N. W. 696; Colby v. Street, 146 Minn. 290, 178 N. W. 599; 26 A. & E. Ency. of Law (2 ed.) 91; 40 Cyc. 1063; 28 R. C. L. 64; Woerner, Am. Law of Adm. (2 ed.) § 37; 15 L. R. A. (N. S.) 466; 44 L. R. A. (N. S.) 733, 756; Ann. Cas. 1914A, 399; Ann. Cas. 1915A, 463; Ann. Cas. 1916D, 1160 (contract not to change will); 25 Harv. L. Rev. 571; 28 Id. 241; 30 Id. 192; 33 Id. 933; 3 Mich. L. Rev. 84; 2 A. L. R. 1155, 1193 (right of beneficiary to enforce contract between third parties to provide for him by will). 93 See § 1071. 96 isee. Where a contract is made to devise specific property in consideration for services to be performed, the measure of damages for a breach of the contract, is the full value of the promised devise, regardless of the value of the services.95 Where a person performs services for another under an agreement for compensation by will and no such compensation is made, he may recover the reasonable value of his services against the estate of the latter. A will executed in pursuance of such a contract will be recognized in equity as a part performance of the contract, and becomes itself in its contractual features an enforceable contract binding on the testator, and his heirs, and cannot be revoked to the prejudice of the other party." It has been held in North Dakota that the probate of a second will revoking a prior will made in pursuance of such an agreement might be enjoined, but this is doubtful.98 An action at law, triable by jury, will lie for the breach of a contract to bequeath personalty." In an action on a quantum meruit the measure of damages for breach of a promise to give one a legacy for services performed prior to the promise is the reasonable value of the ́services and not the amount of the legacy promised.1 An agreement to devise cannot be specifically enforced until the death of the party agreeing to make the will, but if he repudiates the agreement a cause of action accrues for analogous relief by way of rescission or recovery of damages. The statute of limitations does not begin to run against an action at law for a breach of the contract until the death of the testator, unless the latter unequivocally repudiates the contract in his lifetime. A contract whereby one agrees to adopt another and make him his heir at law is continuing in character, and an attempted renunciation thereof by the promisor does not set in motion the statute of limitations. The promisee in such a case may act upon such repudiation and sue at once to protect his rights, or he may delay action until the death of the promisor.* 94 Lindell v. Lindell, 135 Minn. 368, 160 N. W. 1031. 95 Gordon v. Spellman, 145 Ga. 682, 89 S. E. 749; Jefferson v. Simpson (W. Va.) 98 S. E. 212. See 40 Cyc. 1073; Ann. Cas. 1918A, 854. 9.6 Schwab v. Pierro, 43 Minn. 520, 46 N. W. 71: 40 Cyc. 1069; Ann. Cas. 1918A, 855. See § 928. 97 Torgerson v. Hauge, 34 N. D. 646, 159 N. W. 6; Baker v. Syfritt, 147 Iowa 49, 125 N. W. 998. See 3 A. L. R. 172. 98 Torgerson v. Hauge, 34 N. D. 646, 159 N. W. 6. See Sumner v. Crane, 155 Mass. 483, 29 N. E. 1151; Morgan v. Sanborn, 225 N. Y. 454, 122 N. E. 696; 30 Harv. L. Rev. 192. 99 Dilger v. McQuade's Estate, 158 Wis. 328, 148 N. W. 1085; In re Simons, 247 U. S. 231; Jefferson v. Simpson (W. Va.) 98 S. E. 212. See Wold v. Wold, 138 Minn. 409, 165 N. W. 229; 40 Cyc. 1070. 1 Murtha v. Donohoo, 149 Wis. 481, 136 N. W. 158. See Ann. Cas. 1918A, 856. 2 Chantland v. Sherman, 148 Iowa 352. 125 N. W. 871. See Wold v. Wold, 138 Minn. 409, 165 N. W. 229; 40 Cyc. 1067; 44 L. R. A. (N. S.) 752. 3 In re Hess' Estate, 57 Minn. 282, 59 N. W. 193; 40 Cyc. 1071; 8 Ann. Cas. 112; Ann. Cas. 1918A, 912. See In re Wagner, 138 Minn. 37, 163 N. W. 975; Savage v. Minnesota Loan & Trust Co., 142 Minn, 187, 171 N. W. 778; Welsh v. Welsh's Estate, 148 Minn. 235, 181 N. W. 356. 4 Wold v. Wold, 138 Minn. 409, 165 N. W. 229. 153. Preventing execution of will-Constructive trust—If a person by his promises, or by any fraudulent conduct, with a view to his own profit, prevents a will from being made in favor of a third person, and the property intended for such third person afterwards comes to him who prevented the execution of the will, he will be held to be the trustee of the person defrauded to the extent of the interest intended for him." 154. Deposit of wills in probate court for safe keeping-Statute—A will in writing inclosed in a sealed wrapper, indorsed upon which is the name of the testator, his place of residence, the day when, and the person by whom, it is delivered, may be deposited with the probate judge of the county where the testator lives, by the testator or by any person for him, and such judge shall receive and safely keep the same, and give a certificate of its deposit. During the testator's lifetime such will shall be delivered only to him or upon his written order, witnessed by at least two subscribing witnesses and duly acknowledged. After the testator's death, and at the first session of the probate court after notice thereof, it shall be publicly opened and retained by the probate judge. He shall give notice thereof to the executor therein named, if any there be, otherwise to the persons interested in its provisions, or, if the jurisdiction of the case belongs to any other court, he shall deliver the same to the executor named therein, or to some trusty person interested in its provisions, to be presented to such other court. These provisions shall apply to all wills heretofore deposited with probate judges. CONFLICT OF LAWS 155. General rule as to realty-The lex loci rei sitæ governs the testamentary disposition of real property, but this general rule is subject to the statutory rule in this state that a will made out of the state and valid according to the laws of the state or country in which it was made, or of the testator's domicil, if in writing and signed by the testator, may be proved and allowed in this state, and shall thereupon have the same effect as if it had been executed according to the laws of this state. This statutory rule applies only to the validity of the execution of the will and does not affect the validity of the provisions thereof. The validity and effect of the provisions of a foreign will disposing of real property in this state must be determined by the laws of this state. The general rule that the lex loci rei sitæ governs the testamentary disposition of 5 Rollins v. Mitchell, 52 Minn. 41, 53 N. W. 1020; Barrett v. Thielen, 140 Minn. 266, 167 N. W. 1030. See 33 L. R. A. (N. S.) 995; 21 Ann. Cas. 1375; 106 Am. St. Rep. 94; 28 Harv. L. Rev. 460. 6 G. S. 1913, § 7265. 7 G. S. 1913, § 7253; Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790; Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129; Jacobs v. Whitney, 205 Mass. 477, 91 N. E. 1009; Jackman v. Herrick, 178 Iowa 1374, 161 N. W. 97; Ford v. Ford, 70 Wis. 19, 33 N. W. 188; White v. Howard, 46 N. Y. 144; Larned v. Larned, 98 Kan. 328, 158 Pac. 3; Blaine v. Dow, 111 Me. 480, 89 Atl. 1126; 22 A. & E. Ency. of Law (2 ed.) 1367; real property is also limited in this state by the statute authorizing the probate of foreign wills already proved and allowed in another state. 156. General rule as to personalty-The law of the domicil of the testator at the time of his death governs the testamentary disposition of personal property." This general common-law rule is modified somewhat by the statutes of this state. 10 Leasehold interests are personal property within this rule.11 Where the decedent was in fact domiciled at the time of his death is to be determined by the law of the place where the personal property is situated.12 157. Capacity of testator-At common law the capacity of a testator to make a will is governed by the law of his last domicil as respects personalty and by the lex loci rei sitæ as respects realty.18 This commonlaw rule is modified by statute in this state.14 158. Construction-Where the construction of a will merely involves the ascertainment of the intention of the testator and not the validity or effect of a gift the law of the domicil of the testator at the time of the execution of the will governs, regardless of whether the will disposes of real or personal property, unless it is obvious that the testator had the law of another place in view.15 It has been held, however, that whether a testator intended a provision for his wife should be in addition to or in exclusion of her statutory one-third should be determined by the law of the place where the land was situated rather than the law of the last domicil.16 Where, after making his will, a testator changed his domicil, it was held that the law of the place where he made his will governed in determining whether he intended to put his wife to an election between 40 Cyc. 1074, 1384; Woerner, Am. Law 9 Putnam v. Pitney, 45 Minn. 242, 47 N. W. 790; Harvey v. Great Northern Ry. Co., 50 Minn. 405, 407, 52 N. W. 905; Babcock v. Collins, 60 Minn. 73, 77, 61 N. W. 1020; Fox v. Hicks, 81 Minn. 197, 83 N. W. 538; Gregory v. Lansing, 115 Minn. 73, 131 N. W. 1010; State v. Probate Court, 128 Minn. 371, 150 N. W. 1094; Rackemann v. Taylor, 204 Mass. 394, 90 N. E. 552; 22 A. & E. Ency, of Law (2 ed.) 1366; 40 Cyc. 1074, 1384; 2 L. R. A. (N. S.) 408. 10 See §§ 293, 299. 11 Despard v. Churchill, 53 N. Y. 192. 12 Harral v. Harral, 39 N. J. Eq. 279. See 20 Harv. L. Rev. 226. 13 Carpenter v. Bell, 96 Tenn. 294, 34 S. W. 209; Dickey v. Vann, 81 Ala. 425, 8 So. 195; 22 A. & E. Ency, of Law (2 ed.) 1362; 40 Cyc. 997; 2 L. R. A. (N. S.) 415. 14 See §§ 293, 299; Higgins v. Eaton, 202 Fed. 75. 15 Ford v. Ford, 80 Mich. 42, 44 N. W. 1057; Ford v. Ford, 70 Wis. 19, 33 N. W. 188; Keith v. Eaton, 58 Kan. 732, 51 Pac. 271; Larned v. Larned, 98 Kan. 328, 158 Pac. 3; Jacobs v. Whitney, 205 Mass. 477, 91 N. E. 1009; Johnson v. Johnson, 215 Mass. 276, 102 N. E. 465; Purl v. Purl (Kan.) 197 Pac. 185; 22 A. & E. Ency. of Law (2 ed.) 1367; 40 Cyc. 1382; 12 C. J. 483; 2 L. R. A. (N. S.) 443; 11 Ann. Cas. 499; 50 Am. L. Reg. (O. S.) 623, 718. 16 Jackman v. Herrick, 178 Iowa 1374, 161 N. W. 97; Perry v. Wilson, 183 Ky. 155, 208 S. W. 776. See Larned v. Larned, 98 Kan. 328, 158 Pac. 3. |