Barnes v. Gunter

Lewis, J. In 1864 Edward A. Barnes died at Norfolk, Virginia, leaving his last will and testament, which was probated in that city February 27, 1865. The real estate involved in'this action is situate in the county of Goodhue, in this state, and was devised by Edward A. Barnes to his son, William E. Barnes, for life,' and after his death to such of his children as might then be living and to the descendants of any deceased children. The will contained the following provision: “And as I intend this bequest as a provision for the support of my son and his family, I direct that his said life interest in the said farm shall not be subject to be sold by him, and that upon any sale of it by him, or by any other person, on account of his liabilities or engagements, or otherwise, the said bequest of the remainder to his children shall immediately take effect as in case of his death, saving the rights and claims of any child or children who may be afterwards born.” On April 6, 1872, William E. Barnes and wife conveyed the real estate to William S. Wells, by warranty deed, which ivas recorded May 4, 1872. .On the first of June, 1872, William S. Wells and wife conveyed by warranty deed to Anthony Gunter, Sr.; and on May 7, 1892, Anthony Gunter and wife, by warranty deed, conveyed to Anton Gunter, the respondent in this action, who has occupied the land from May 7, 1892, down to the time of the trial. Anthony Gunter, his father, occupied the land from February, 1872, until the conveyance to his son in 1892. William E. Barnes left the state of Minnesota in 1872, and moved to Paris, Arkansas, where he died April 24, 1900, leaving surviving him the appellant in this case, William V. Barnes, who claims title as remainderman under the will. Appellant ivas born in 1859, and until about 1904 was ignorant [393] of the provisions of the will and of his rights thereunder. The will was probated in Goodhue county in 1904, and this action was commenced in 1905 for the purpose of securing possession of the property, and for the value of the rents and profits. It was admitted at the trial that respondent and his immediate grantor were in the actual and exclusive possession of the land since May 7, 1892. The record suggests several questions involving the construction of the will: The effect of the provision against alienation, adverse possession as against the plaintiff prior to the death of the life tenant, whether the probate of the will in Virginia -was properly authenticated, and whether respondent and his immediate grantors were innocent purchasers, in good faith, from the heirs of the testator, without any knowledge of the will. W. E. Barnes conveyed to W. S. Wells the life estate only, although the deed purported to convey the entire estate. Authority for this conclusion is found in section 3343, E. L. 1905 (G-. S. 1866, c. 40, § 5), which provides that a conveyance by a tenant for life, purporting to grant a greater estate than he possessed, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant could lawfully convey. The court is of opinion that the provision in the will to the effect that the estate should vest in the remainderman (plaintiff) immediately upon the execution of a conveyance of the land by his father, the life tenant, was valid, and that the plaintiff became entitled to possession on April 6, 1872, and that, the defendant and his immediate grantors having been in the actual and exclusive possession of the land since 1872, defendant acquired title in fee by adverse possession. Lewis v. Barnhart, 145 U. S. 56, 79, 12 Sup. Ct. 772, 36 L. Ed. 621. Speaking for mysélf, I have found some difficulty in coming to this conclusion. The plaintiff, as remainderman, never had any knowledge of the will, and consequently had no opportunity to declare a forfeiture of the life estate, or to take possession of the land. But it seems clear to me that appellant cannot recover for other reasons: Eespondent, and his grantors, were entitled to rely on the presumption that .the testator, Edward A. Barnes, died intestate. One [394] defense pleaded was that on April 6, 1872, William E. Barnes violated the terms of the condition in the will by conveying the property to William S. Wells; but the answer also states that Anthony Gunter, Sr., and respondent in good faith, peaceably took possession of the premises without any actual notice of any defect violating the deeds of conveyance. William E. Barnes resided on the farm from 1860 until about 1866, and soon thereafter moved to Arkansas, where he died in 1900. During all of that time it does not appear that he ever knew anything about the will. Ilis son, .appellant here, became of age in 1881, and' it was stated during the argument, to account for his negligence in not probating the will in Goodhue county prior to 1904, that he never knew there was such a will until it was accidentally found during that year. There is no evidence that the will was ever heard of or brought to the attention of respondent, his father, or his grantor, William •S. Wells. The deeds from the life tenant and the other heirs of Edward A. Barnes contained no reference to a will, and the grantors were not described as devisees or legatees. Barnes assumed to convey the entire title, and procured quitclaim deeds from the other heirs, by virtue of which a complete title vested in Mr. Wells, subject to the provisions of the will. These quitclaim deeds from the several heirs of Edward A. Barnes were not executed until about a month after the execution of the warranty deed from Barnes to Wells; But in the absence of evidence to the contrary it should be presumed that they were secured pursuant to an understanding that the title was thus to be made complete. In the absence of any evidence of knowledge of the will, or of the nature of William E. Barnes’ interest in the estate, or of facts to put them upon inquiry, Wells and his grantees were entitled to rely upon the presumption that Edward A. Barnes died intestate, and were justified in assuming that the title was vested in his heirs. In Weigel v. Green, 218 Ill. 227, 75 N. E. 913, the deed described the heir as legatee of Catherine Stipp, late of Lawrence county, Indiana. Although there is no statutory limitation within which a foreign will must be probated in this state, yet such a will has no effect whatever to convey or effect title to real estate until it is probated. [395] Tt follows that, until a foreign will is probated in the county where the real estate involved is located, a purchaser of the land, without notice of the will, may rely upon the presumption that the grantor was intestate and safely purchase from the heirs. The title to the lands can only pass by devise, according to the laws of the state or county where the lands lie, and the probate of a will in one state or county is of no validity as affecting the title to lands in another. McCormick v. Sullivant, 10 Wheat. 192, 6 L. Ed. 300. The law presumes that a person who is proven to be dead left an heir or heirs; but no such presumption obtains as to the existence of a will, nnd the foreign probate of a will is not notice to the purchaser of lands affected thereby. The probate of a will in one state will not affect a bona fide purchaser of land in another state from an heir and before the probate of the will in the state where the land is located. Van Syckel v. Beam, 110 Mo. 589, 19 S. W. 946; Slayton v. Singleton, 72 Tex. 209, 9 S. W. 876. The case of Chase v. Woodruff, 133 Wis. 555, 113 N. W. 973, 126 Am. St. 972, is analogous. The rule ivas adopted that there was a presumption of intestacy where a husband seeks to establish title to property as the sole heir of his deceased wife. The same principle has been applied in this state to a deed by a bona fide purchaser from an heir of the deceased owner, which takes precedence over a deed executed by the intestate in his lifetime, but unrecorded. Welch v. Ketchum, 48 Minn. 241, 51 N. W. 113. Affirmed.