CASES

IN THE

SUPREME COURT

OF

MINNESOTA.

CASEY v. BRABEC.

[111 Minn. 43, 126 N. W. 401.]

WILL-Gift Void for Uncertainty.-A provision in a will bequeathing a sum of money to the executors "to use as they see proper" is void for uncertainty. (p. 532.)

DECREE OF DISTRIBUTION-Who may Appeal.-Only a Party Aggrieved by it can question a specific provision of a decree of distribution entered in probate court. (p. 532.)

DECREE OF DISTRIBUTION-Costs.-Upon Affirmance by the District Court of such decree, respondent is entitled to costs: Revised Laws 1905, section 3880. (p. 532.)

(Syllabi by the court.)

John M. Casey, pro se.

J. T. Alley, for respondent.

44 O'BRIEN, J. The will of John Casey, deceased, was duly probated in Wright county. The estate consisted principally of real property, all of which was specifically bequeathed to one or other of testator's children, consisting of a son and two daughters. The bequests to the daughters were made upon the condition that each would keep two of the children of a deceased daughter of the testator "until such time as they are able to provide for themselves, or until their father will come and claim them." By a codicil the real estate bequeathed to one of the daughters was charged with a bequest of five hundred dollars to one of the grandchildren above mentioned. There was also bequeathed four hundred dollars to the executors "to use as they see proper."

The will was admitted to probate July 25, 1906, and in July, 1908, a citation was issued requiring John M. Casey, who seems to have been the only active executor, to show cause why the estate should not be settled. Casey filed an account, in which he asked for an allowance of fifty dollars.

to himself as attorney's fee. The court disallowed the claim as attorney's fees, but allowed him fifty dollars as executor. The provision of the will for the payment of four hundred dollars to the executors, to use as they saw proper, was held void for uncertainty. A decree was thereupon entered assigning the real estate according to the provisions of the will. The executor appealed from the portions of the decree disallowing his claim for attorney's fees, and holding the four hundred dollar bequest void. Judgment was entered in the district court affirming the decree, in which judgment there was included ten dollars statute costs taxed against the appellant. This appeal is from the judgment so entered.

45

We do not consider it necessary to determine whether plaintiff should have been allowed the sum awarded him in his capacity as executor or as an attorney. There is no contest as to the amount, and that is the final consideration. It is claimed that the decree fails to give effect to the provisions of the will imposing upon the daughters of the testator the duty of caring for the grandchildren. We do not think this question is properly before us, for the reason that the appellant is not the aggrieved party, and we cannot undertake upon this appeal to say what effect should be given those provisions, or whether or not they should be considered as specific charges upon the real estate devised to the testator's daughters.

We think the probate court correctly held the legacy of four hundred dollars to the executors void for uncertainty. It was evidently intended to constitute a trust fund to be disposed of in the discretion of the executors, or for some undisclosed purpose of the testator. Had the legacy been made to some named individual, to use as he saw proper, it might be argued that the person named took the beneficial interest in the fund. But, being made to the executors, who might or might not be the persons named as such in the will, it is apparent that the sum of four hundred dollars was not intended for their use. The purpose of the testator is so indefinite and uncertain that it is impossible for a court to say that it can be ascertained and carried into effect.

Under section 3880, Revised Laws of 1905, costs were properly taxed in the district court: Tracy v. Tracy, 79 Minn. 267, 82 N. W. 635.

Judgment affirmed.

If a Testatrix Devises All of Her Property to whoever shall take care of her, at her request, providing that the person so selected shall have a written statement to that effect, the will is not invalid for the reason that no devisee is named: Dennis v. Holsapple, 148 Ind. 297, 62 Am. St. Rep. 526.

INGLE v. ANGELL.

[111 Minn. 63, 126 N. W. 400.]

ACCOUNT STATED-What Constitutes. In the Last Analysis an account stated is nothing more than an agreement between the parties as to the items considered. (By the editor.) (p. 534.)

ACCOUNT STATED-What Constitutes-Action.-Parties holding mutual and open claims against each other may agree as to some of such items, leaving other items for future adjustment, and an action upon an account stated may be maintained for the balance arrived at from the items considered. (p. 534.)

ACCOUNT STATED-Setoff in Action for Balance.-In such action the party against whom the balance is claimed may offset against it any balance which he claims from the items not included in the settlement. (p. 534.)

(Syllabi by the court except when stated to be by the editor.)

Lewis E. Jones, for the appellant.

McCumber & Forbes and Henry G. Wyvell, for the respondent.

63 O'BRIEN, J. The plaintiff's demand consists of three causes of action-two hundred and thirty-six dollars and seventeen cents, a balance claimed to be due upon an account stated between J. G. Ingle and defendant, and assigned to plaintiff; three dollars, upon another account between those persons, also assigned to plaintiff; and a balance of fifty dollars, for personal services rendered to defendant by plaintiff. There was a conflict of evidence as to each of these claims, making a plain question of fact as to each, and they were all fully and fairly submitted to the jury, which found for the plaintiff in the sum of two hundred and eighty-three dollars and twenty-five cents. This appeal is from an order denying a new trial.

64 The principal contention of the defendant is with reference to the first cause of action, based upon the alleged stated account. The testimony upon behalf of the plaintiff was to the effect that for some time prior to March, 1908, defendant and J. G. Ingle had various transactions resulting in valid claims by each against the other, and that some time during March, 1908, they met and came to an agreement with reference to each of said claims, with the exception of one item for spelt claimed to have been furnished Ingle by the defendant, amounting to about thirty-four dollars. This item the plaintiff concedes was left for future determination. The defendant denied that any balance was agreed upon, and, according to his testimony, there was no agreement which would establish an account stated.

The court submitted to the jury the question whether or not any such agreement was made, with the instruction that

plaintiff could recover upon the first cause of action only in case they found it was so agreed. In submitting to the jury plaintiff's claim as to an account stated the learned trial judge said:

"If you find, gentlemen of the jury, upon the evidence, that there was certain item or items that the parties agreed to suspend or leave out, pending future investigations or future inquiry, and if they agreed that they should take up other matters and claims, and examine the claims of each party; and that as to these claims that they did take up and examine, if you find that they arrived at a correct balance upon these claims, and that it was found that-that there was a balance due from the defendant to J. G. Ingle as claimed by plaintiff, the plaintiff would be entitled to recover upon that agreed balance. In other words, gentlemen of the jury, the right of the plaintiff to recover in this action would not be defeated because of the fact-if you find it to be a fact that one or two items were left unexplained and omitted from the account by agreement between the parties."

The defendant contends that the court erred in so charging, and insists that, where the transactions between the parties resulted in mutual, open and current accounts between them, there can be no account stated, unless all of the items claimed by each are included; in other words, that the balance found must be complete and final. 65 We do not agree with the contention. In the last analysis an account stated is nothing more than an agreement between the parties as to the items considered. If the agreement is that the balance found is final and complete, it constitutes an account stated as to every item; but, upon the other hand, we do not see how a court can limit the right parties have to make such lawful contracts as they choose, and, therefore, to agree as to certain items and leave open for adjustment or adjudication other items. It is not apparent that injury can result from such a rule. In the present case the defendant was at liberty to claim the amount of any omitted item as an offset to plaintiff's demand, and by such means be fully protected. The result is that the instruction complained of was correct: Tuggle v. Minor, 76 Cal. 96, 18 Pac. 131.

In the third cause of action plaintiff alleged an agreement to pay the amount claimed, and also that the services were reasonably worth the amount. Defendant moved that plaintiff be required to elect whether to rely upon the agreement or the reasonable value. This motion was addressed to the discretion of the court, of which, in denying it, there was no abuse: Plummer v. Mold, 22 Minn. 15.

There were some slight discrepancies in the amounts claimed in the complaint and those shown by the testimony.

Those discrepancies do not affect plaintiff's right to recover, the recovery being less than the amount claimed in the complaint. We have examined the evidence as contained in the record, and find no error in the rulings of the court with reference to its admission, and also find that the evidence was sufficient to justify the verdict. The charge very clearly submitted the questions involved to the jury, and there is no reason for disturbing the verdict rendered.

Order affirmed.

Accounts Stated are discussed at length in the recent note to Jasper Trust Co. v. Lampkin, 136 Am. St. Rep. 37.

SPEAR v. JOHNSON.

[111 Minn. 74, 126 N. W. 402.]

APPEAL-Deposit in Lieu of Bond.-The Proper Procedure to Obtain money deposited with the court on an appeal in lieu of the statutory bond, under Revised Laws of 1905, section 4366, is to apply to the court having jurisdiction of the fund for an order directing its application. Either party may make such application. (p. 536.)

EXECUTION-Deposit in Lieu of Appeal Bond.-The Successful Party on such an appeal is not required, as a matter of law, to resort to the fund; but if his judgment be not paid, he may proceed by execution to enforce it. (pp. 536, 537.)

(Syllabi by the court.)

Frederick L. Spear, pro se.

Bardwell & Levy, for the respondents.

74 BROWN, J. Defendant Johnson brought an action against plaintiff in the municipal court of Minneapolis, and recovered a judgment for fifty dollars and costs. Defendant therein, plaintiff in this action, appealed from the judgment to this court, where an affirmance was ordered: 102 Minn. 516, 113 N. W. 1134. In lieu of a bond on that appeal, 75 defendant deposited, under Revised Laws of 1905, section 4366, the sum of two hundred and fifty dollars in money with the clerk of the municipal court as security for the costs and disbursements which might be awarded against him in this court. On November 29, 1907, judgment was entered in this court upon the affirmance of the judgment appealed from against the appellant for the sum of fortyfour dollars and twenty-five cents costs and disbursements. The judgment not being paid, plaintiff therein caused the issuance of an execution and delivered it to the sheriff of