McGovern v. McGovern

77 N.W. 970, 75 Minn. 314, 1899 Minn. LEXIS 473

• Court: Supreme Court of Minnesota
• Decided: January 20, 1899
• Docket: Nos. 11,450—(238)
• Status: Published

Opinion

CANTY, J.

In 1882 Thomas McGovern made a last will. He died the next day, and the will was probated. The will provides:

“After paying my lawful debts and funeral expenses, I give, devise and bequeath to my wife, Mary McGovern, the northeast quarter of section six, in township 107, range 25, and all the personal property that I may become possessed of at my death.”

The deceased never owned or had any interest in said northeast quarter, but did own at the time of making his will and at the time of his death the southeast quarter of that section, and resided on the same with his wife and family. He owned no other land. The court below held that this will did not dispose of the real estate so owned by the deceased, and awarded it to the heirs at law. Those claiming under the will appeal to this court.

In our opinion, the judgment appealed from should be affirmed. The will does not in any form state that the deceased owned the land which the will purported to devise, and if the false description in the will is rejected as surplusage, there is no description left by which the land intended to be devised can be identified. See Schouler, Wills, §§ 268, 269; 1 Jarman, Wills (6th Ed.) 412, et seq.

Judgment affirmed.