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were to deliver and pay over so much of the estate devised as might remain unexpended, it was held that a limitation over in case of the death of the cestui que, without leaving issue, before attaining the age of twenty-five, was valid, it being the law in Illinois that a fee may be limited after a fee by will.

In O'Quinn v. Crane (1925) 189 N. C. 97, 126 S. E. 174, the testator directed his trustee, upon demand of his wife, to turn over to her any and all parts of his estate "for her own use and benefit without let or hindrance;" by another paragraph he provided that if any part of his estate remained in the hands of the trustee at the death of his wife, the trustee should pay over the income to another party; and it was held, the wife having demanded and received an absolute conveyance of all the estate from the trustee, that she had a fee-simple title under the will. The court said that the second provision by clear inference explained the first, and indicated conclusively that all the estate could be demanded and disposed of, and, if all should not be, and some remain, how it should devolve..

But under the rule that, when words at the beginning of a will show an intention of the testator to devise the entire estate, that estate will not be cut down to a lesser estate by subsequent ambiguous words found therein, the Missouri court in Cornet v. Cornet (1912) 248 Mo. 184, 154 S. W. 121, held that an unqualified gift in fee simple of an estate to the testator's wife and six children, in equal shares, to be divided among them in kind, appointing one of the children trustee to preserve the estate until such division could be made, will not be deemed to be destroyed or cut down or reduced to an estate for life with remainder to the heirs at law of one of the children, a man addicted to drink, by a subsequent clause declaring that this child's share should be placed in the hands of the child appointed trustee to preserve the entire estate, in trust for the benefit of the wayward child, the trustee "to manage such trust fund and to make the same productive in such

manner as he may deem most safe and advantageous, and the income thereof, after deducting the necessary expenses and a reasonable compensation for his services to either pay over to the said George A. Cornet [the beneficiary] in quarterly instalments or at his said trustee's option to lay it out in such manner as he deem most beneficial to said Geo. A. Cornet-and after the decease of Geo. A. Cornet, said trust fund shall go to his heirs in law and thereupon the trust shall cease." The court was of the opinion that from an entire reading of the will, it was the intention of the testator to make all of his children equal beneficiaries in the estate, but with a provision to protect the one son against his recognized weakness; but that the language of the subsequent provision clearly recognized that this son had previously been given an interest in the estate which the testator wanted to be placed in the hands of a trustee for the use and benefit of the son.

So, where a will devised property in trust for the testatrix's brother during his absence in foreign countries, with direction to the trustee to deliver up possession and control thereof whenever the brother should require him to do so, it was held in Kelley v. Hogan (1902) 71 App. Div. 343, 76 N. Y. Supp. 5, that a subsequent provision that in case the brother should not survive the testatrix, or in case he should not claim the property from the trustee, or should die in possession of it without disposing of it by will or deed, the trustee should hold it in trust for the benefit of a certain minor, to be applied for the use and maintenance of the said minor, in so far as it directed the property to be held in trust for the third person in the event it was not disposed of by the brother, was void as repugnant to the absolute and complete estate given to the brother, inasmuch as he not only had the right to enter into full possession with power to sell or use the property in any manner, but in addition, as expressly provided, might will it as he saw fit. The court said: "What the testator here intended was to give the property absolutely to Sylvester,

should he return from foreign parts and enter into possession, which, as we have seen, he did. It was only in event of his not returning and entering into possession that provision was made for a trust in Ralph's [the minor's] favor which was to continue during his infancy, or, at most, during life. It will be noticed that unless this construction prevails the result will be that, after the trust in favor of Ralph ceases, there is no one who is thereafter to take the property; and thus, in a will where it is clear that the testatrix intended to make a disposition of her entire property, she would, after the trust estate ceased, have left the property undisposed of. In doubtful cases, where the testator shows an intention to dispose of all his estate, that construction should be adopted which favors vesting, rather than one which leads to the conclusion that the testator died without having made a full disposition of it." A dissenting opinion in this case was rendered by Laughlin, J., who took the position that the testatrix had declared in clear and pointed language, absolutely free from ambiguity, her intention that in event of the brother dying while in possession of the property, without having disposed of it, that a minor should have some interest in the premises; that, this intention not being left in doubt, the court should so construe the will as to carry it into effect if it could be done consistently with the provisions of the statute, which he deemed could be done.

In Fanning v. Main (1904) 77 Conn. 94, 58 Atl. 472, after making a bequest to his wife and other bequests to his children, a testator gave his residuary estate to his executors to hold, manage, and invest, directing them, by articles 19, 20 and 22 of the will to "pay over and deliver" one third thereof and the accumulations at the end of five, ten, and fifteen years respectively, to his children and to the heirs of such of them as might be dead, to whom he devised and bequeathed the residue in fee; but by a subsequent paragraph (art. 24) to the will he provided, "to such of my children as I have hereinbefore given their specific gifts and

legacies for life only as will appear by §§ 5, 11, and 14 of this will, I order and direct my said executors to allow and pay to them and each of them, only the rents, interest and income of their respective shares or instalments of the said residuum of my estate for life, and then to pay to their heirs at law respectively, as provided and directed in the nineteenth, twentieth and twenty-second sections of this will." The court held, however, that the latter provision did not cut down or diminish the fee already given the children by the prior provision. In the course of the opinion it is said: "It is a sound rule of construction that an express and positive devise in fee cannot be cut down to an inferior estate by a subsequent clause in the will, unless that be equally express and positive. A mere implication is not enough. . . . The terms of article 24 are consistent with the supposition that the testator intended to leave these children invested with the same estate which he had given them by article 19, and desired only to control their enjoyment and disposition of it by leaving the property in the hands of his executors for their benefit during their lives, and sending it, upon their decease, to their heirs at law. This was to impose conditions repugnant to the estate, and in such cases the estate stands and the conditions fall. An estate in fee simple, once fully given, cannot be withheld from the owner by the interposition of a naked trust; nor his jus disponendi abridged by a direction to the trustees to pay the fund upon his death to another."

A gift of the residuary estate to a daughter absolutely and in fee, in the most appropriate and technical terms, "to her, her heirs and assigns forever," following a devise of the entire estate in trust for the testator's husband for life, with remainder of certain of it to her sons, will not be cut down to a life estate by a codicil providing: "It is my will that in case any or either of my said children shall depart this life without leaving lawful issue then and in such case it is my will, and I do hereby give and devise and bequeath the part and share of my

estate intended for such decedent unto my surviving children and their lawful issue of such of my children as may then be deceased their respective heirs, executors, administrators and assigns, in equal parts and shares." Martin's Estate (1892) 11 Pa. Co. Ct. 245. The court, although admitting that it was within the power of a testator to reduce an absolute gift to one of less interest, said that it was a canon of construction in the interpretation of wills that a clear gift cannot be cut down by any subsequent words unless they show a clear intention; hence, it followed that if the gift is made to a person absolute in the first instance, and it is subsequently provided that in the event of death, or death without issue, another legatee shall be substituted to the share or legacy given, it shall be con

strued to mean death, or death without issue before the testator or during the existence of a prior estate, and if the original legatee should survive, the gift will be absolute. Moreover, the court was of the opinion that aside from this general principle the codicil itself was intended only to take effect in case of the death in the lifetime of the testatrix or of the tenant for life, inasmuch as the alternative limitation was not only "in case of death without leaving issue,"-words implying a definite failure of issue,-but that which is to go as indicated in the event of such death is "the share of my estate intended for such decedent," showing, by the expression "intended for," that the contingency contemplated was one happening before the share vested in possession. G. S. G.

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1. The possession of successive occupants who are in privity may be tacked to make possession for the statutory period.

[See annotation on this question beginning on page 792.]

Evidence, § 1577 - finding sustained.

2. The finding that the plaintiff was in such possession of land as to maintain the statutory action to determine adverse claims is sustained. Evidence, § 1494 possession.

finding of adverse

3. The finding of the necessary elements to constitute adverse possession is sustained.

Adverse possession, § 3 - beyond boundary line.

4. Possession beyond a boundary line, under mistake as to the true line, but with an intent to appropriate, is adverse.

See 1 R. C. L. 731; 1 R. C. L. Supp. 245.)

Headnotes by DIBELL, J.
46 A.L.R.-50.

Adverse possession, § 261 - failure to pay taxes - effect.

5. Failure of one in possession of part of a tract of land, assessed as one tract, to pay taxes on an adjoining portion, does not, under the provisions of the statute (Gen. Stat. 1923, § 9187), prevent adverse possession of the portion actually occupied.

Adverse possession, § 59 title acquired.

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nature of

6. A title acquired by adverse possession is a legal title, though not a record title, and is not lost by the ceasing of occupancy.

[See 1 R. C. L. 690; 1 R. C. L. Supp.

233.]

APPEAL by defendant from a judgment of the District Court for McLeod County (Tifft, J.) in favor of plaintiff in an action brought to determine adverse claims to certain land. Affirmed.

The facts are stated in the opinion of the court. Mr. William O. McNelly for appellant.

Mr. Sam G. Anderson, for respondent:

In adverse possession it is not necessary that each occupant shall have conveyed or assigned in writing to his successor. There must be privity between the successive holders, but each may transfer his right to his successor by a voluntary transfer of the possession.

Sherin v. Brackett, 36 Minn. 152, 30 N. W. 551; Ramsey v. Glenny, 45 Minn. 401, 22 Am. St. Rep. 736, 48 N. W. 322; Kelley v. Green, 142 Minn. 82, 170 N. W. 922; Seymour, S. & Co. v. Carli, 31 Minn. 81, 16 N. W. 495;

Brown v. Morgan, 44 Minn. 432, 46 N. W. 913; Stevens v. Velde, 138 Minn. 59, 163 N. W. 796.

Dibell, J., delivered the opinion of

the court:

Action under the statute to determine adverse claims to land. There were findings and judgment for the plaintiff. The defendant, Otto Henke, appeals.

The plaintiff is the owner of government lot 8 in section 8-117-29 in McLeod county. He claims to be the owner by adverse possession of a portion of the adjoining government lot 9 in the same section. The defendant, Henke, is the owner of lot 9 unless his title to the portion claimed by the plaintiff has been divested by adverse possession.

1. To maintain his statutory action to determine adverse claims, the plaintiff must be in possession or the lands be vacant. Gen. Stat. 1923, § 9556. The court finds possession in the plaintiff. At a time shortly before the institution of this action there was trouble over the boundary between the two lots. It is probable that it then first became known that the portion in dispute belonged to lot 9. The defendant The defendant trespassed upon lot 8, and shifted a fence so as to occupy a part of it. The plaintiff brought an action of trespass. There was a restraining

order against the defendant. The evidence is confusing as to just what was done, but it seems probable that the parties decided to leave possession as it had been, or at least that it should not be in the defendant, and that the controversy should be determined in court in an orderly way. If the disputed land was left vacant, the action can be maintained. It is only when there is occupancy by some one other than the plaintiff that the action will not lie. Upon careful consideration of evidence, not at all conclusive and sometimes uncertain and unsatisfactory, we sustain

Evidence

the finding of pos- finding sussession in the plain

tained.

tiff. We do not overlook the rule that one in possession, by claiming title and asking affirmative relief, may waive all question as to vacancy or possession. Dunnell's Dig. (Minn.) § 8044. Whether the evidence makes the rule applicable we do not determine.

2. The property in dispute is described in the complaint as "all that portion of lot 9 in section 8 ... lying between the south boundary of lot 8 . . . and the northerly shore line of Lake Hook in said section 8."

The easterly boundary of lot 8 and most of its southerly boundary is the irregular shore line of Lake Hook, a meandered lake. The northerly boundary of lot 9 is a line extending from the lake east to the north and south section line between sections 8 and 7. The easterly 600 feet of this line is a common. boundary between lots 8 and 9, and the west line of lot 8 is at the east end of the 600-foot line, extending northerly from that point. The portion of lot 9 in dispute is southerly of lot 8, and has the 600-foot line as its northerly boundary and the lake as its easterly and southerly boundary. Except as the size of the government lots was better

(- Minn. -, 209 N. W. 257.)

equalized by putting the disputed portion in lot 9, it might as well have been made, so far as can be seen, a part of lot 8.

There is evidence that in 1884 or 1885 Haine, the owner of lot 8, built a fence along his westerly line. and extended it to the lake, disregarding his actual southern boundary as represented by the 600-foot line extending west from the lake. There is some dispute as to whether the first fence went so far as the lake, but the evidence is ample that it was there for thirty or forty years at the least. The possession of Haine was continued by those taking through him as his heirs, and by others taking by conveyance or by descent. In 1923 the plaintiff purchased. The disputed portion was pastured, timber was cut from it, some brushing was done, and one year some cropping, small small in amount and unsuccessful in result, was attempted. The land was used and devoted to purposes for which it was appropriate in view of its character and location. The farm buildings were upon the northeast part of lot 8. The disputed portion was used in connection. with the rest of the lot. To constitute adverse possession, it is not essential that the adverse possessor actually live upon the land which he claims. It is enough that it is occupied and applied to the uses for which it is fit. Costello v. Edson, 44 Minn. 135, 46 N. W. 299; Brown v. Kohout, 61 Minn. 113, 63 N. W. 248; Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060; Glover v. Sage, 87 Minn. 526, 92 N. W. 471. Adverse or hostile intent may be inferred from the character of the possession. Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060; Seymour, S. & Co. v. Carli, 31 Minn. 81, 16 N. W. 495; Sawbridge v. Fergus Falls, 101 Minn. 378, 112 N. W. 385. Possession, to be under "claim of title" or "claim of right," a misleading phrase, need be nothing more than possession with intent to appropriate and hold against all comers. Carpenter v. Coles, 75

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Adverse possession-tacking.

3. The possession of successive occupants, if there is privity between them, may be tacked to make adverse possession for the requisite period. Privity is essential. Possession lost by abandonment or lost by disseisin, and possession taken when a prior occupant abandons or is disseised, cannot be tacked. Possession through descent or by transfer of title or possession is in privity. Sherin v. Brackett, 36 Minn. 152, 30 N. W. 551; Ramsey v. Glenny, 45 Minn. 401, 22 Am. St. Rep. 736, 48 N. W. 322; Marek v. Holey, 119 Minn. 216, 137 N. W. 969; Kelley v. Green, 142 Minn. 82, 170 N. W. 922. There was privity here from the time of Haine down to the acquisition of title by the plaintiff.

4. The boundary claimed by the plaintiff and his predecessors was a mistaken boundary. In Seymour S. & Co. v. Carli, 31 Minn. 81, 16 N. W. 495, it was held that, where an adjoining owner occupies beyond the boundary line, under a mistake as to the true line, but under a claim of title, his occupancy

ary line.

is a disseisin and his -beyond boundpossession adverse, though initiated and continued by mistake. This rule has been followed. Brown v. Morgan, 44 Minn. 432, 46 N. W. 913; Ramsey v. Glenny, 45 Minn. 401, 22 Am. St. Rep. 736, 48 N. W. 322; Weeks v. Upton, 99 Minn. 410, 109 N. W. 828; Meyer v. Petersburg, 99 Minn. 450, 109 N. W. 840; Stevens v. Velde, 138

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