to take under a will.63 The fee of the homestead vests in the children subject only to the life estate of the surviving spouse, and the title of the children to such remainder in fee cannot be waived, impaired or burdened by the surviving spouse either as life tenant or as administrator.G All the children share equally in the remainder after the life estate of the surviving spouse."5

64

68

66

103. Exemption from debts of decedent and charges of administration-Disposition by will-A homestead descends to a surviving spouse and children exempt from all debts of the decedent which were not a valid charge thereon at the time of his death. This exemption is absolute and does not depend upon the occupancy of the homestead as a home by the surviving spouse or children, but it is not exempt from the individual debts of the surviving spouse unless it is so occupied.$7 The homestead is not ordinarily an asset of the estate of the decedent for purposes of administration and neither the land itself nor the rents and profits thereof can be used to pay the debts of the decedent or the charges of administration. A testator by his will directed that all his just debts be paid out of his estate, and bequeathed and devised all the rest, residue and remainder of his estate to his sister. This estate included the homestead of the testator, and he left no wife, or child, or issue of a deceased child. Held, that by the residuary devise the testator disposed of the homestead by his last will within the meaning of the third subdivision of the statute. In such a case the devisee takes the homestead free from claims of creditors of the decedent, unless the latter clearly indicates a contrary intention in his will. Prior to Laws 1889, c. 46, the exemption of the homestead from the debts of the decedent was less extensive than under the present statute.70 A testamentary disposition of a homestead assented to by the surviving spouse. does not render it liable for the debts of the testator. Collateral heirs take subject to the debts of the decedent.72

63 See § 502.

64 Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876.

65 Hawkinson v. Oleson, 140 Minn. 298, 168 N. W. 13.

66 G. S. 1913, § 7237; Eaton v. Robbins, 29 Minn. 327, 13 N. W. 143; Tracy v. Tracy, 79 Minn. 267, 82 N. W. 635.

67 Holbrook v. Wightman, 31 Minn. 168, 17 N. W. 280; Gowan v. Fountain, 50 Minn. 264, 52 N. W. 862; Clark v. Dewey. 71 Minn. 108, 73 N. W. 639; Fraser v. Farmers & Mechanics Savings Bank, 89 Minn. 482, 95 N. W. 307; Larson v. Curran, 121 Minn. 104, 140 N. W. 337.

68 Nordlund v. Dahlgren, 130 Minn.

71

462, 153 N. W. 876. See §§ 782, 816, 821, 933, 953.

69 Larson v. Curran, 121 Minn. 104, 140 N. W. 337.

70 McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53; McGowan v. Baldwin, 46 Minn. 477, 49 N. W. 251; Dunn v. Stevens, 62 Minn. 380, 64 N. W. 924, 65 N. W. 348.

71 Eckstein v. Radl, 72 Minn. 95, 75 N. W. 112; Larson v. Curran, 121 Minn. 104, 140 N. W. 337.

72 G. S. 1913, § 7237 (3); Dunn v. Stevens, 62 Minn. 380, 64 N. W. 924, 65 N. W. 348 (note on page 381). See Larson v. Curran, 121 Minn. 104, 140 N. W. 337.

DESCENT OF REAL PROPERTY OTHER THAN

HOMESTEAD

104. Statute-The surviving spouse shall also inherit an undivided. one-third of all other lands of which decedent at any time during coverture was seized or possessed, to the disposition whereof, by will or otherwise, such survivor shall not have consented in writing, except such as have been transferred or sold by judicial partition proceeding or appropriated to the payment of decedent's debts by either execution or judicial sale, by general assignment for the benefit of creditors, or by insolvency or bankruptcy proceedings, and subject to all judgment liens. But the lands so inherited shall be subject in their just proportion to such debts of the decedent as are not paid out of his personal estate. The residue of such other lands, or, if there be no surviving spouse, then the whole thereof, shall descend, subject to the debts of the intestate, in the manner following:

1. In equal shares to his surviving children, and to the lawful issue of his deceased children, by right of representation.

2. If there is no surviving child and no lawful issue of any deceased child, and the intestate leaves a surviving spouse, then the whole estate shall descend to such spouse.

3. If the intestate leaves no issue nor spouse, his estate shall descend to his father and mother in equal shares, or, if but one survives, then to such survivor.

4. If there be no surviving issue nor spouse, nor father nor mother, his estate shall descend in equal shares to his brothers and sisters, and to the lawful issue of any deceased brother or sister, by right of representation.

5. If the intestate leaves neither issue, spouse, father, mother, brother nor sister, his estate shall descend to his next kin in equal degree, except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote.

6. If any person dies leaving several children, or leaving one child and the issue of one or more other children, and any such surviving child dies under age and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal share to the other children of the same parent, and to the issue of any such other children who have died, by right of representation.

7. If, at the death of such child, who dies under age and not having been married, all the other children of his said parent being also dead, and any of them having left issue, the estate that came to such child

by inheritance from his said parent shall descend to all the issue of the other children of the same parent, according to the right of representation.

8. If the intestate leaves no spouse nor kindred, his estate shall escheat to the state.78

105. To surviving spouse-A surviving spouse is entitled to an undivided one-third of all lands other than the homestead of which the decedent at any time during coverture was seized or possessed, to the disposition whereof, by will or otherwise, such survivor shall not have consented in writing, except such as have been transferred or sold by judicial partition proceeding or appropriated to the payment of decedent's debts by either execution or judicial sale, by general assignment for the benefit of creditors, or by insolvency or bankruptcy proceedings, and subject to all judgment liens. The courts cannot read any exceptions into the statute.75 A wife is probably entitled to her statutory third, though she abandons her husband, with or without cause, in the absence of a decree of divorce.76 If there are no surviving children, or issue of deceased children, a surviving spouse takes the entire estate, unless there is a will, in which event, a surviving spouse, electing to take under the statute, is entitled to only one-third of the estate." In determining whether there are surviving children or issue of deceased children within the foregoing rule children by a former marriage stand on the same footing as children of the marriage existing at the death of the decedent.78 The interest of a surviving spouse under the statute is not the same thing as common-law dower or curtesy and nothing but confusion and error result from construing it with reference thereto. We are far from common-law dower in this state." Some of our cases

73 G. S. 1913, § 7238, as amended by Laws 1917, c. 272. As to descent of cemetery lots, see G. S. 1913, § 6288, as amended by Laws 1915, c. 233, § 1.

74 G. S. 1913, § 7238; Lake Phalen Land & Imp. Co., 66 Minn. 209, 212, 68 N. W. 974; Hulett v. Carey, 66 Minn. 327, 339, 69 N. W. 31; Merrill v. Security Trust Co., 71 Minn. 61, 73 N. W. 640; Kelly v. Slack, 93 Minn. 489, 101 N. W. 797; Griswold v. McGee, 102 Minn. 114, 127, 112 N. W. 1020, 113 N. W. 382; Wellner v. Eckstein, 105 Minn. 444, 448, 117 N. W. 830; Stromme v. Rieck, 107 Minn. 177, 181, 119 N. W. 948; Boeing v. Owsley, 122 Minn. 190, 194, 142 N. W. 129; State v. Probate Court, 129 Minn. 442, 445, 152 N. W. 845. See, for the history of legislation on the subject in this state, Desnoyer v. Jordan, 27 Minn. 295, 298, 7 N. W. 140: Washburn v. Van Steenwyk,

32 Minn. 336, 20 N. W. 324; In re Gotzian's Estate, 34 Minn. 159, 24 N. W. 920; Morrison v. Rice, 35 Minn. 436, 29 N. W. 168; Roach v. Dion, 39 Minn, 449, 40 N. W. 512; Lindley v. Groff, 42 Minn. 346, 44 N. W. 196; Griswold v. McGee, 102 Minn. 114, 126, 112 N. W. 1020; In re Evans' Estate, 145 Minn. 252, 177 N. W. 126.

75 Wellner v. Eckstein, 105 Minn. 444, 117 N. W. 830.

70 Sammons v. Higbie's Estate, 103 Minn. 448, 453, 115 N. W. 265.

77 Kelly v. Slack, 93 Minn. 489, 101 N. W. 797; Johrden v. Pond, 126 Minn. 247, 250, 148 N. W. 112.

78 Rosbach v. Weidenbach, 95 Minn. 343, 346, 104 N. W. 137.

79 Scott v. Wells, 55 Minn. 274, 56 N. W. 868; Lake Phalen Land & Imp. Co. v. Lindeke, 66 Minn. 209, 212, 68 N. W.

81

inaccurately speak of the statutory interest of a widow as a mere enlargement of dower, or otherwise assimilate it to dower.80 Under the statute a surviving spouse is an "heir" of the deceased spouse.' The statutory interest of a surviving spouse partakes of the nature of a distributive share of a next of kin, except that it cannot be defeated by transfer during coverture without the consent of the other spouse.82 It vests immediately on the death of the decedent by operation of law.83 It is a freehold estate in fee simple if such was the estate of the decedent. It may be devised or sold and conveyed and is subject to the lien of a judgment against the surviving spouse and to sale on execution like any other beneficial estate. A purchaser, whether at a voluntary or compulsory sale acquires the title of the surviving spouse, subject to the rights of the creditors of such spouse and also subject to the debts of the decedent and the charges of administration.85 The statute is not limited to legal titles. An equitable title to land descends in the same manner as a legal title. The rights of a surviving spouse as statutory heir under this statute are unaffected by the statute relating to the computation of degrees of kindred and excluding those of the half blood from an ancestral inheritance.87 The interest of a surviving wife is subject to a mortgage executed by her husband alone before they were married. The statutory interest of a surviving spouse is subject to all judgment liens attaching to the estate of the decedent before his death.89 It is subject to all special liens existing at the death of

88

86

974; Merrill v. Security Trust Co., 71 Minn. 61, 73 N. W. 640; Johnson v. Minnesota Loan & Trust Co., 75 Minn. 4, 77 N. W. 421; State v. Probate Court, 137 Minn. 238, 163 N. W. 285; In re Evans' Estate, 145 Minn. 252, 177 N. W. 252.

so In re Gotzian's Estate, 34 Minn. 159, 24 N. W. 920; In re Rausch's Will, 35 Minn. 291, 28 N. W. 920; Gowan v. Baldwin, 46 Minn. 477, 479, 49 N. W. 251; Dayton v. Corser, 51 Minn. 406, 53 N. W. 717; Holmes v. Holmes, 54 Minn. 352, 56 N. W. 46; Crowley v. C. N. Nelson Lumber Co., 66 Minn. 400, 69 N. W. 321; Griswold v. McGee, 102 Minn. 114, 128, 112 N. W. 1020; Stromme v. Rieck, 107 Minn. 177, 119 N. W. 948.

81 Lake Phalen Land & Imp. Co. v. Lindeke, 66 Minn. 209, 68 N. W. 974; State v. Probate Court, 137 Minn. 238, 163 N. W. 285; In re Anderson's Estate, 148 Minn. 44, 180 N. W. 1019; Dana v. Dana, 226 Mass. 297, 115 N. E. 418. See L. R. A. 1918A, 1108.

82 Guerin v. Moore, 25 Minn. 462; Lake

Phalen Land & Imp. Co. v. Lindeke, 66
Minn. 209, 212, 68 N. W. 974.

83 Scott v. Wells, 55 Minn. 274, 277, 56 N. W. 828; Byrnes v. Sexton, 62 Minn. 135, 138, 64 N. W. 155; Minneapolis & St. Louis R. Co., 91 Minn. 45, 48, 97 N. W. 452; Griswold v. McGee, 102 Minn. 114, 112 N. W. 1020, 113 N. W. 382; Howe Lumber Co. v. Parker, 105 Minn. 310, 117 N. W. 518. See $$ 77, 1060, 1073, 1209.

84 Crowley v. C. N. Nelson Lumber Co., 66 Minn. 400, 407, 69 N. W. 321; Hamilton v. Detroit, 85 Minn. 83, 89, 88 N. W. 419; Griswold v. McGee, 102 Minn. 114, 127, 112 N. W. 1020, 113 N. W. 382.

85 Byrnes v. Sexton, 62 Minn. 135, 139, 64 N. W. 155.

86 Doran v. Kennedy, 122 Minn. 1, 141 N. W. 851.

87 Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129.

88 Roach v. Dion, 39 Minn. 449, 40 N. W. 512.

89 G. S. 1913, § 7238; Byrnes v. Sexton, 62 Minn. 135, 64 N. W. 155 (not sub

91

96

the decedent." It is subject to a purchase-money mortgage or vendor's lien. It is subject to the debts of the decedent and the charges of administration. In other words it is an asset of the estate of the decedent for the purposes of administration.92 This liability to the charges of administration is enforceable only in the probate court. The interest of a surviving spouse is liable to exonerate other real estate from a mortgage thereon." It is subject to the inheritance tax.95 It may be waived by an antenuptial agreement. The surviving spouse does not take lands which have been transferred or sold by judicial partition proceeding or appropriated to the payment of decedent's debts by either execution or judicial sale, by general assignment for the benefit of creditors, or by insolvency or bankruptcy proceedings." The interest of a wife of a partner in firm realty is conditional on the winding up of the firm affairs.98 Under a former statute the statutory interest of a surviving wife was subject to a mortgage executed by her husband during coverture without her joining." Under a former statute a surviving wife was only entitled to one-third of the real estate of which her husband died seized and her interest was cut off by his sole deed during coverture. Where there is a will a surviving spouse may elect to take either under the will or the statute.2

106. Inchoate interest of one spouse in the realty of another-By virtue of G. S. 1913, § 7238, a husband and wife have a certain inchoate interest in the real property of each other while they are both living. In some of our cases this interest has been inaccurately characterized as a

ject to judgment recovered against decedent before his death but not docketed until thereafter). See Dewing v. Dewe ing, 112 Minn. 316, 127 N. W. 1051 (fraudulent judgments to defeat wife's interest).

90 Byrnes v. Sexton, 62 Minn. 135, 139, 64 N. W. 155.

91 See Jones v. Tainter, 15 Minn. 512 (423) Northwestern Trust Co. v. Ryan, 115 Minn. 143, 132 N. W. 202; 52 L. R. A. (N. S.) 540.

92 Scott v. Wells, 55 Minn. 274, 56 N. W. 828: Byrnes v. Sexton, 62 Minn. 135, 64 N. W. 155; Lake Phalen Land & Imp. Co. v. Lindeke, 66 Minn. 209, 212, 68 N. W. 974; Merrill v. Security Trust Co., 71 Minn. 61, 73 N. W. 640; Johnson v. Minnesota Loan & Trust Co., 75 Minn. 4, 77 N. W. 421; Keith v. Mellenthin, 92 Minn. 527, 529, 100 N. W. 366; Kelly v. Slack, 93 Minn. 489, 101 N. W. 797. In Goodwin v. Kumm, 43 Minn. 403, 45 N. W. 853, it was held that only the lands of which the decedent died seized or pos

sessed were subject to the payment of his debts. This case was overruled by Johnson v. Minnesota Loan & Trust Co., 75 Minn. 4, 77 N. W. 421.

93 Goodwin v. Kumm, 43 Minn. 403, 45 N. W. 853; Luse v. Reed, 63 Minn. 5, 65 N. W. 91; Johnson v. Minnesota Loan & Trust Co., 75 Minn. 4, 77 N. W. 421.

94 Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354.

95 State v. Probate Court, 137 Minn. 238, 163 N. W. 285. See Dana v. Dana, 226 Mass. 297, 115 N. W. 418.

96 Desnoyer v. Jordan, 27 Minn. 295, 7 N. W. 140; In re Malchow's Estate, 143 Minn. 53, 172 N. W. 915. See Dunnell, Minn. Digest and Supplements, § 4285. 97 See § 104.

98 Woodward-Holmes Co. v. Nudd, 58 Minn. 236, 59 N. W. 1010.

99 Roach v. Dion, 39 Minn. 449, 40 N. W. 512.

1 Morrison v. Rice, 35 Minn. 436, 29 N. W. 168.

2 See §§ 495-523.