O'Dell v. Rogers

44 Wis. 136

• Court: Wisconsin Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

ObtoN, J.

The publication of notice of the time and place of proving the will of Galutia O’Dell was clearly insufficient. The statute, sec. 18, ch. 97, R. S., provides, that the county court shall appoint a time and place for proving a will, “when all concerned may appear and contest the probate ” thereof, and “ shall cause public notice thereof to be given by personal service on all persons interested, or by publication, under au order of such court, in such newspaper printed in this state as the judge shall direct, three weeks successively previous to the time appointed; and no will shall be proved until notice shall be given as herein provided.” By this language the object and purpose of the notice are, that all persons interested may appear and contest the validity and probate of the will; and if such notice is not given, and any party interested does not appear or otherwise consent to the proceedings, as to such party, at least, they are invalid..

The object of such notice, and the consequences of a failure to give the proper notice, are expressed or clearly implied by the statute itself.

The jurisdiction of the county court, though limited and defined, is original and exclusive over the subject matter of the probate of wills, and fully attaches upon the death of the testator and proof of his domicile or the situation of his estate. It is said that death of the testator gives to courts of probate general jurisdiction; and proof of the domicile and situation of the estate, both the general jurisdiction of the subject matter, and jurisdiction of the particular case. 3 Bedfield on W., 120.

To understand fully the statute, and the application of the authorities cited on the question of jurisdiction, it may be proper to consider the former methods and practice in probate.

Fonuerly, in England, the ecclesiastical court had jurisdiction only of the probate of wills of jpersonal property, and the courts of common law over devises of real estate; and the decrees of the ecclesiastical court in reference to the personal estate were final and conclusive as to all persons; but the judgments of the common-law courts, in the case of wills of real property, were conclusive only as between the parties to the suit. In most of the states, courts of probate hava jurisdiction of wills of both personal and real property; and the statute confers upon our county courts snob jurisdiction, by the language, “ of all cases of the probate of wills;” and thus full and complete jurisdiction of the probate of all wills is given; not, however, to proceed as in common-law courts, by suit, but in a particular manner defined by statute; and it has been held that the decrees of such courts, in respect to all wills, are final and conclusive as to all parties having notice. 1 Jarman on W., 213; Potter v. Webb, 2 Greenl., 257.

The only form of probate in our practice is the solemn form; of which all parties interested must have notice, or they are not bound; but the decree is final and conclusive as to all persons having notice. In some of the states, it assimilates to the practice in common-law courts, and an issue of clevisavit vel non is made up, to which persons interested appear and file a caveat, and the issue may be tried by a jury; and it is held in such cases that the proceeding is in rem, to which persons interested may appear or be notified to appear, and if they appear or consent to the proceedings, they are bound by the decree, which, to all such parties and their privies, is final and conclusive. Redmond v. Collins, 4 Dev., 439. From the very nature of the proceedings, the distinction between jurisdiction of the subject matter, and of the persons or parties interested in it, is, if anything, more clearly marked than in suits at common law in courts of general jurisdiction; and this distinction is expressly recognized in Bloom v. Burdick, 1 Hill, 130, cited by appellants’ counsel. Indeed, so strongly do the courts lean in favor of the jurisdiction of the court of probate in the proof of wills, that in some of the states it is held that the decree, being in a proceeding in rem, is final and conclusive even as to infants and persons under disability (3 Redfield on¥., 63, and cases there cited); and in some of the states the statute provides for infants and persons under disability coming in to contest the will within certain time aftei disabilitv removed. 4 N. II., 406.

It will be observed that whenever the courts, deciding upon the question of the effect, upon a decree of the court of probate, of a want of notice to persons in interest, or of their nonappearance, use the word “ void,” it is used not in the sense of an absolute mollity, but of invalidity, and as to such persons only.

In Smith v. Rice, 11 Mass., 507, Israel Smith died, leaving an estate in lands, no children, but one brother and three sisters, his only heirs; and the demandant was the brother. The probate court appointed commissioners to partition the estate between them, if it could be done, or to assign the whole to one upon payment of three-fourths of its value to the others. The commissioners did assign the whole estate to one of the sisters upon payment to each of the other three of the sum of $581.51 and interest, as their share of the estate. The report was confirmed by the court, and a decree entered accordingly. The statute of Massachusetts provided that in such case persons interested in the estate residing in the state, or, if absent from the state, their attorneys, if they had any within the state, must be notified of the proceeding; and in the case of minors, provided for the appointment of a guardian, and in case of persons residing out of the state, for the appointment of some discreet person to represent them in the proceeding. The statute also provided, in such assignment of the whole estate to one of the heirs, that the male heir should have preference, and might demand the assignment to himself. The three sisters were present and consented to the assignment; and the two received their share of the moneys allotted to them. The brother, the demandant, resided out of the state, and no person was appointed to represent him, and he had no notice. The court, in its opinion, said:. “If it appear that the judge of probate has exceeded his authority, or that he has undertaken to determine the rights of parties over whom he has no jurisdiction, .... the party aggrieved, if, without any laches on his part, he has had no opportunity to appeal, may consider tbe act or decree as void; ” and in the conclusion of the opinion: “Upon the whole, we are satisfied that the demandant, in the case at bar, is not concluded by the decree of the probate court. It is void as to him; and he is entitled to receive his share of the estate of his brother as if the partition and assignment had not been made; ” and in another part of the opinion: “If the demandant had after-wards accepted from the tenant the sum awarded by the probate court, this might have been a waiver of the objection to the want of notice, and an assent to the proceedings, which would have rendered them valid.” A fuller reference to this case has been made, because it seems to' make the distinction between jurisdiction of the subject matter and jurisdiction of the person, in proceedings before .the probate courts, which are conceded to have only special 'and limited jurisdiction, perfectly clear, and in every respect the same as in courts of general jurisdiction; and the case is, in many respects, parallel to this case; and because the counsel for the appellants seem to rely very much upon it as authority to show the nullity of this decree of probate.

In the case of Denning v. Corwin, 11 Wend., 617, the court acquired no jurisdiction of the subject matter, because no,affidavit to accompany the petition was made as the statute required; and no jurisdiction of the parties, for want of notice. In respect to other authorities cited, it is sufficient to say that none of them militate against this view, but rather establish it.

Attention has been called to our statute, sec. 21, eh. 97, R. S., “ No will shall be effectual to pass either real or personal estate, unless it shall have been duly proved and allowed in the county court,” etc., as making the decree of probate the inception of title; and if such decree be void absolutely for want of notice to the parties in interest, no title would pass to the executors in trust, and all sales made by them under the will would be void, and confer no title upon the purchasers. Aside from this mistaken view of the decree of probate in •cases where the court acquires jurisdiction of the subject matter by the death of the testator and his last domicile, this statute does not change the principle, existing without it, that the title does not spring from the probate, but from the will itself, and the probate operates as a mere authentication, or “ the authenticated evidence, and not at all as the foundation of the title to the property disposed of by the will.” 1 Jarman on ~W., 212; 2 Greenl. Ev., § 339. And it is so held in states having the same statute as ours. Strong v. Perkins, 3 N. H., 517.

In the cases cited in which the court of probate decreed the sale of the real estate to pay debts, the proceedings are in derogation of the common law, and hostile to the heirs, and can bnly be instituted in certain conditions of administration, and the facts in the petition must be such as by the statute authorize them; and even in such cases it is held that the petition and proof of the facts confer jurisdiction of the subject matter. Grignon's Lessee v. Astor, 2 How., 338; Sitzman v. Pacquette, 13 Wis., 325. Jurisdiction of the parties or persons interested, and due notice to them, are also unquestionably necessary to make the sale valid as to them; and such proceeding is in the nature óf a suit, and the defendants must have notice as in other cases of 'suits at law or in equity, and the •want of notice would be attended with the same consequences. Schneider v. McFarland, 2 Comst., 459. The cases decided by this court, Rape v. Heaton, 9 Wis., 328; Falkner v. Guild, 10 id., 563; Gibbs v. Shaw, 17 id., 197; Blodgett v. Hitt, 29 id., 174; Bresee v. Stiles, 22 id., 120; Ruth v. Oberbrunner, 40 id., 238, and other cases, in which this point is considered, do not in the least conflict with the principle that want of notice only makes such proceedings void as to the persons not appearing or assenting, and that such notice may be waived.

In the application of these principles to the decree of probate under consideration, it is clear that such decree, and the subsequent proceedings in the execution of the will, are void only as to such persons in interest as did not appear or assent thereto, or as have not since supplied such want of appearance by acts clearly indicating an assent thereto or .a ratification thereof. The respondents Celestia A. O'Dell and Geo. W O'Dell were the executrix and executor and trustees named in the will, and took administration thereof, and were the proponents of the will for probate, and it was their duty to give the requisite notice thereof, and they made all the sales of the estate, and received their shares of the proceeds, and made final settlement with the county court, and, of course, cannot now be allowed to say that the proceedings wTere void. And even if they claim that they acted under the direction and undue influence of their attorney, Rogers, they subsequently, with full knowledge 'of all the facts, voluntarily, fully and finally confirmed and «ratified all the proceedings, and are now estopped from questioning them.

The two heirs Zeruiah A. Reynolds and Mary G. Brewer, if not personally present at the probate, according to the allegation of the complaint, and which was a conceded point in the case, appeared there by their attorney Rogers, and they also subsequently consented to the proceedings by receiving their shares of the proceeds of the sales, and executing receipts and deeds of confirmation,

The respondent Emma A. Hewitt, at the times of all the proceedings of probate and of administration, was an infant, and became of age on the 17th day of October’, 1873. She was not represented in any of the proceedings by guardian or in other proper manner. And, although the statute is silent as to the appointment of guardian to represent infant heirs and' other persons under disability at the probate of wills, such appointment is incidental and necessary in all cases where notice to persons interested in the estate is required; and,if not so represented, the proceedings as to such persons will be void. The defective publication or the want of personal notice or appearance, as to them, are quite immaterial. If the notice had been sufficient as to all persons of proper age, and the proceedings otherwise regular, the infant heir would not be bound unless represented by guardian, and such infant could not be charged with laches, consent or ratification, during the time of minority. And in this case, if a guardian was appointed for Mrs. Hewitt at the time of the settlement of the estate, and acted in her behalf in such settlement and in receiving the proceeds of the sales under the will; and in executing receipts and acquittances therefor, this would not make valid the prior proceedings, in which she was not represented; and there can be no question that, within a reasonable time after becoming of age, she could disaffirm all such proceedings and ask the court to declare them void as to her and set them aside, on the ground of her infancy alone. Bresee v. Stiles, 22 Wis., 120. The only inquiry, therefore, as to her, in respect to the proceedings of probate and the appointment of executor and executrix and their authority to administer the estate under the' will, is, Has she done anything since becoming of age tantamount to an appearance at the time and place of the probate, or in assent thereto, or in recognition thereof? This court held, in Blackburn v. Sweet, imp., 38 Wis., 578, and many other cases, in effect, that when the moving party asks some relief which can only be granted upon the hypothesis that the court has jurisdiction of the cause’ and the person, this is a submission to the jurisdiction, and waives all defects in the service of process; and that where a party seeks to take advantage of a want of jurisdiction, he must object on that groimcl alone, and keep out of court for every other purpose. This is the only safe and consistent rule in all cases of a want of jurisdiction of the person, by defective service or notice, which may be waived by an appearance. In August, 1876, Emma, A. Hewitt, then being of full age, joined in a petition to the county court of Milwaukee county, setting forth the want of sufficient publication of notice of the time and place of the proving of the will, and that no notice was personally served on the persons interested therein, as the only ground for showing that the county court in probate had no jurisdiction to make the order or decree admitting said will to probate, dated the 27th day of May, 1870. It is not stated in said petition that she did mot appear by guardian, nor does she rely upon the fact of her infancy and not being represented by guardian, as a ground for such want of jurisdiction to make such decree; and she disaffirms in said petition only “ the acts, contracts and instruments made by her during her said' minority in reference to said estate, and the settlement, sale and disposition thereof; ” and she does not seek to disaffirm the said decree of probate on the ground of her infancy. She charges that Gelestia A, O’Dell and George W. O’Dell, pretending to act as executrix and executor, and Rogers, Burnham and Becher, took possession of the estate and converted it to their own use, and have never accounted; that said estate has been wrested from the petitioners and other heirs by a cunningly devised system of fraud, etc.; that Rogers was the attorney of the testator in liis lifetime, and drew the will, and acted as the attorney and «counselor of the heirs and the pretended executors of said estate, etc., and, while acting as such by fraud and imposition upon the pétitioners and their rights, and abusing trust and confidence, etc., he acquired title to a portion of the estate; and that Burn-ham had knowledge of it; that the estate was sold for a grossly inadequate consideration; that the conveyance to Oel-estia A. O’Dell was a fraud upon the petitioners; and that Rogers, as such attorney, by misrepresentation and fraud, caused the petitioners to receive their shares of the proceeds and to execute deeds and receipts, etc., and refused to give them the notes taken for such shares, and never paid them their shares in full; and generally charges that the said county court never acquired jurisdiction of said estate, or of the petitioners, and that all its pretended orders and decrees in this matter are absolutely void, and the pretended sales by the pretended executors are void, as being; to and for the benefit of the attorney for the heirs and pretended executors of said estate, and his privies, through fraud, imposition and the exercise of undue influence and unfair advantage on the part of said attorney, and under a mistake as to their rights and the facts in the case, and for a grossly inadequate consideration; that the pretended sale to Oelestia A. O’Dell is void, because she was acting as executrix of the estate; that no accounting was ever made to the court; and that the decree is void for want of authority in the court to make it, and by reason of the fraud practiced upon the court and the heirs of said estate. The prayer asks, first, “ that the probate of the will and all orders and proceedings in this matter be set aside; ” secondly, “ and for such other and f%irther relief as may he just and proper.’’

The complaint in this case is, if anything, much fuller and more explicit in respect to all the fraudulent and unfair deal'ings with the estate since the decree of probate, by the defendants Rogers, Burnham and Beeher, and the prayer much broader for relief; and in both the petition and complaint, relief is asked consistent only with a valid proof of the will, and the due appointment of executors, and holding them as trustees of the estate, as such; and no complaint is made against the validity of the will, or its due proof in court.

The petition and complaint most fully and clearly place the said Emma A. Hewitt in the attitude which this court has so frequently held is equivalent to an appearance to the proceeding sought to be declared void for want of notice; and operate as an assent and submission to the proceedings of the court in the probate of the will and the appointment of executors. For the purposes of this ease, therefore, we must hold said proceedings valid as to all the parties.

We have next to consider, first, the various' subjects of complaint other than that these proceedings are void; and secondly, the relation of the plaintiffs to the matters complained of.

The will of Galntia O’Dell appoints Oelestia A. O’Dell executrix and George W. O^Detl executor, and bequeaths to them, in trust, the whole estate, with full power to sell at public or private sale, at such time or times, and in such tracts and portions, and upon such terms, and in such manner, as to them shall seem meet, and as soon as possible after the death of the testator as the real estate can be sold to advantage, to sell the same, and, after the payment of debts, expenses, etc., to distribute the funds remaining, one-third to G ¿lesbia, A. O'Dell) the wife, and the remaining two-thirds, share and share alike, to the four children.

The will confers upon the trustees the very fullest power and discretion in the sale of the estate; and the terms of the will are not complained of. By the will, no title descends to or is conferred upon the heirs, and their relation to the real estate is only as cestuis que trust. They have, however, a direct interest in its sale, and may hold the trustees to the highest responsibility in the execution of their trust, and in the exercise of at least a reasonable discretion in such sale.

In assuming the trust under such an almost unlimited power and discretion, the law imposed upon them the obligation that they should act honestly and fairly, unbiased by any interest they had in the estate, except as a spur to diligence and an encouragement to make the most advantageous sale of the estate, for their own benefit and the equal benefit of all the other beneficiaries; and we think that the law also imposed upon them the prohibition that they should not become, directly or indirectly, the purchasers at their own sale as such trustees.

The statute, sec. 27, ch. 94, R. S., in terms, prohibits executors and administrators making sale of real property to pay debts, from purchasing, directly or indirectly, or being interested in the purchase of, any part of the real estate so sold, and makes all such prohibited sales void. This statute, in terms, may not be broad enough to include sales by executors by direction of the will; but the reason and necessity of the prohibition are greater in tlie latter case than iii tbe former, and it is held that, without such a statute, where the executors are made trustees by the will, with power of sale, they cannot become the purchasers,, unless the will expressly authorizes it. 3 Redfield’s Law of "Wills, 551.

We think that Gelestia A. O'Dell, the executrix, indirectly at least, if not directly, became purchaser of a portion of the estate, and that such sale to herself was void.

The respondent Rogers was an attorney-at-law, and was thoroughly acquainted with the situation of the estate and its true value, had been the attorney and adviser of the testator in his lifetime, advised with him as to the making of the will in his last sickness, drew the will, and suggested the executrix and executor, and became, on the death of the testator, their attorney and legal adviser, as well as the attorney and legal adviser of the heirs, and, down to the day of final settlement of the estate, had virtually the control of all the proceedings. Iiis trust was the greater, as he had advised the appointment of Gelestia A. O'Dell as ■ executrix, and George W. O' Dell as executor, and trustees by the will — two illiterate and most incompetent persons for such a trust — and against the inclinations at least of the testator, agreeing to advise them in the management of the estate; and, from the evidence, it cannot be doubted that he exercised a controlling influence over the trustees and the heirs, and that they had confidence in his advice and judgment. Under these circumstances, he became the purchaser jointly with Bwrnham and his law partner, Beefier, of a large part of the estate. Although there is no such preponderance of evidence as would justify this court in disturbing the finding of the circuit court as to the fairness of the sales or the adequacy of the price at the time they were made, and although we are willing to believe that there was no intentional fraud practiced or corrupt influence used by Rogers, the attorney, in bringing about the sales to Gelestia A. O'Dell, and to himself, Bwrnham and Beeher, yet we cannot avoid denouncing bis conduct, under tbe circumstances, as grossly improper, if not unlawful. It is evident that be used most remarkable, and perhaps not entirely disinterested diligence in hastening tbe sales, and probably considered it as advantageous to himself to secure an interest in tbe property as it would be to tbe heirs to have tbe sales made without unnecessary delay. Sales made by trustees and executors to their own attorney, under any circumstances, are held to be even more improper than if made to themselves, for the reason that they are supposed to be made under the influence, if not pressure, of legal advice, and induced by confidential relations which ought to be above suspicion; and this is especially true in this case, c: where there is great intellectual inequality, and comparative inexperience on the part of the clients.” Mills v. Mills, 26 Conn., 213. The law seems to be well settled, that in such cases the attorney will become the trustee of the projoerty so improperly purchased, at the option of the parties interested, and may be charged as fully with the administration of the trust, and be held as responsible for his dealings with the property, by the cestid que trust, and be called upon to account, as the original trustee, even where the sale to the attorney “ was fairly made, and for what at the time was considered by all the parties a fair price.” James, ex parte, 8 Vesey, 337.

In no court has this principle been more emphatically recognized, and more pointedly and clearly enforced, than in this, by the opinion of the late lamented Justice Paihe in Gillett v. Gillett, 9 Wis., 194, and by the able, learned and exhaustive opinions of the chief justice in the late cases, In re Taylor Orphan Asylum, 36 Wis., 534, and Cook v. Berlin Woolen Mill Co., 43 id., 433.

It is clear that both Celestia A. O'1 Dell and Daniel G. Rogers, the former the executrix, and the latter her attorney, and the attorney of the heirs also, after these sales, occupied the relation of trustees of the property, and from the evidence it must be held that both Burnham and Beoher had full knowledge of this relation, and participated with Rogers in the purchases, and stand affected with whatever disability to purchase attached to Rogers, and that they are equally chargeable with the trust. Hoffman S. C. Co. v. Cumberland C. & I. Co., 16 Md., 456.

The 19.52 acres deeded to Gelestia A. O'Bell, December 2, 1870, and the 9.361 acres deeded to her July 10, 1871, subse'quently came back, by deed from one Howard Newkirk, the grantee of Gelestia A. O'Dell, to Burnham and Rogers, in April, 1874.

Whatever might have been the attitude of Newkirk in respect to the property, as the purchaser from Gelestia A. O'Dell with knowledge of her relation to it as trustee, or in collusion with Rogers, or otherwise, when the identical estate caine back to Burnham and Rogers, it was chargeable with the same trusts as if the purchase had been made by them directly from Celestia A. O'Dell. Ely v. Wilcox, 26 Wis., 91.

So far as this case discloses, the title of Burnham, Rogers and Beeher to all third persons, whether defendants herein or not, is not affected by any alleged defects in the proceedings in probate or administration, or by any conduct of the trustees, and .must be held valid.

The present relations of the plaintiffs to this trust property remain to be considered.

Very little need be said in respect to the legal attitude of Gelestia A. O'Dell. She was a party to all of these improper dealings with the estate, and received the proceeds thereof, and can have no standing in a court of equity. And George W. O'Dell was a joint trustee,- and by his action, also, these proceedings occurred, and he fully assented thereto and received his full share of the proceeds thereof, besides being estopped by his deeds. Zerwiah A. Reynolds, with full knowledge of all the facts and proceedings, became dissatisfied with the disposition of the property, and with the conduct of the executors and of the attorney Rogers, and, before receiving her share of the estate, consulted with two competent lawyers of the city of Milwaukee, Judge Manu and Samuel Howard, Esq., and, from her statement of the facts, they advised her fully as to her rights, and that she could have the sales set aside and declared void. After this, she voluntarily abandoned her rights, with her eyes fully open, and received her share also, and executed a quitclaim deed to Celestia A. O'Dell, of the 19.52 acres, March 4, 1871, and an instrument, in effect a receipt, release, ratification and confirmation, covering the whole matter, under her hand and seal, on the 27th day of March of the same year. These acts of assent, confirmation and ratification are of the most conclusive character, and, by all of the authorities, must be held to preclude and estop these parties from now questioning the transactions complained of. Kerr on Frauds, 296; Pearsoll v. Chapin, 44 Pa. St., 9; Willard’s Eq., 169; Parsons v. Hughes, 9 Paige, 591; Karber v. Nellis, 22 Wis., 215; State v. Langer, 29 id., 69; Grannis v. Hooker, 31 id., 474; Booth v. Ryan, imp., id., 45; Mackey v. Stafford, 43 id., 653.

Mary C. Brewer makes no complaint or claim in this case; but it is obvious, she stands in the same relation to these transactions as her sister Mrs. Reynolds, and would be estop-ped by similar acts of confirmation.

In respect to Emma A. IDewitt, by force of the principles and authorities hereinbefore considered in relation to her, while yet a minor she could do no act and be guilty of no laches or neglect which would conclude her in relation to the trust property or the conduct of the trustees; and after becoming of age she had the option or election to affirm or dis-affirm all of the proceedings and transactions affecting her rights, or to treat the trust, as to her, as closed and fully settled, or as a subsisting trust in the property of the estate, and hold the trustees responsible for their dealings with it and management and disposition of it, and demand of them an accounting. By the bringing of this suit, she disaffirms all the acts of the trustees, and her own acts while yet a minor, and demands such accounting.

There is no proof that, since she became of age, she has done anything except remain in the quiet and silent enjoyment of what she received while still an infant as her share of the proceeds of the estate. No authority has been cited by the learned counsel, and it is probable none can be found, to show that this conduct alone wbuld amount to such acquiescence, assent or confirmation as would preclude her from demanding the relief asked.

As to the statute of which state, Wisconsin or Minnesota, fixing the time when an infant becomes of age, is tobe considered as affecting this plaintiff, Emma A. Hewitt, in her relations to the estate, and in the execution of the deeds, receipts, and confirmations alleged to have been made by her, we have no question but that the statute of Wisconsin governs. It is true that by the will she had no title in fee to the real estate of the testator, either by descent or devise; but her interests are connected with and grow out of the real estate situated in Wisconsin; and the statute of this state governs the entire administration, including the sale of the estate, distribution of the proceeds, and the final settlement, even as to persons residing abroad. The lex rei siten, as well as the law of the domicile of the testator, are both of this state. 3 Redfield on Wills, 31, 35; Chase v. Chase, 2 Allen, 101; 6 Jones’ Eq., 365.

Statutes fixing the age of majority are personal statutes, and unquestionably govern the contracts and transactions of persons within the states where they are in force; but all the transactions between this plaintiff and the executors and the defendants Rogers, Burnham and Beeher in relation to this estate, must be held to have taken place within this state, where by the statute she was still under the disability of infancy.

The only remaining question as affecting her rights is, Has so long a time elapsed since sbe became of age, as to warrant the presumption of her acquiescence in this disposition of her estate, and of her affirmance of her acts done in respect thereto during her infancy? Or in other words, has she been guilty of such laches or unreasonable delay since she became of age, before bringing this suit, as should debar her of the relief she would have been entitled to by greater diligence?

The law and the correct mile in this regard are well expressed in the language of the learned counsel of the respondents in their brief: “ A minor is bound to disaffirm her contracts within a reasonable time after attaining her majority.” This seems to be the rule in all cases, by the later and better authorities. The limit of such reasonable time depeuds upon the circumstances of each case. Hawley v. Cramer, 4 Cow., 717. We cannot hold that in this case such delay has been unreasonable, or that the court should deny the relief she asks, on the ground of laches. She was a resident of the state of Minnesota when she became of age; and there is no proof that she has been in this state, or in the vicinity of the property, or has had any knowledge of any change in its situation or value, since that time.

We shall therefore be compelled to hold that the plaintiff Emma A. Hewitt is entitled to the relief asked.

The court has received aid and assistance from the learned counsel on both sides, by their elaborate briefs and able arguments.

The first and second errors of the circuit court in the rejection of evidence, complained of, “in refusing to allow the plaintiffs to prove that Burnham, Bogers and Beoher had sold a part of the land, and for what price it had beeen sold, and also how much had been realized from sales, prior to June, 1872,” and “ in rejecting evidence showing what lots of land of the same character as the land in question, and which faced upon and abutted it, were sold for at the same time,” may be considered together. The first question might have been pertinent in matters of accounting, but was certainly immaterial in ascertaining the value of the property at the time of the sale; and the second would open a new controversy and side issue, involving an inquiry into various conditions, situations and circumstances of other property, which might not at last approximate to the point of showing the value of the land in question; and at best the evidence would be uncertain and of little weight; and we think the court properly rejected both.

The third error assigned is, as to allowing the witness O’Neal to testify as to the stone quarry on the land purchased by him, and a part of the land in question. The court very properly allowed it, for it showed the quality of the land, and its intrinsic character. And the evidence was properly rejected showing what O’Neal paid for that ¡Dart of the pro¡Derty in October, 1873, and what it was then worth. 1 G-reenl. Ev., §51.

As to the fourth error assigned, on the rejection of the evidence of Geo. W. CP Dell, on cross examination, as to what he would have done “ if he had supposed that the sale .of that land could have been broken up: ” the question involved two subjects of inquiry quite impertinent to the case; the first, as to what he would lime done, instead of what he did do; and the second, his supposition as to his legal rights, instead of his knowledge of the facts; neither of which could possibly have any bearing upon the question of confirmation.

We have now considered all the material questions raised; and it remains only to determine the legal consequences of their decision, in the future proceedings of the case in the circuit court.

The conclusion seems to be inevitable, that the judgment of the circuit court, so far as it affects the plaintiffs George W. O’Dell, Celestia A. O’Dell and Zeruiah Ann Reynolds, must be affirmed, with costs; that so far as it affects the plaintiff Emma A. Dewitt, it must be reversed, with costs; that the complaint and suit stand as to Emma A. Hewitt, plaintiff, against Daniel O. Rogers, George Burnham, and John A. Becker, defendants; and that she have judgment against them for the relief asked in the complaint; and the canse is remanded with directions to the circuit court to proceed according to the opinion.

By the Gourt. — So ordered.

RyaN, C. J., and Lyok, J., took no part.

The respondents asked for a rehearing on the ground that some parts of the “relief asked in the complaint” were inconsistent with the views of this court as expressed in the opinion, and that the instructions to the circuit court respecting the relief to be granted the plaintiff Emma A. Hewitt ought therefore to be modified. The motion was denied, with §25 costs.