Volume 245 — Minnesota Reports

<bold>Jurisdiction — foreign representative — property in the</bold> <bold>forum</bold>. <block_quote> 1. As a general rule, a foreign representative in his capacity as representative of an estate may not be sued in any jurisdiction outside of the state in which he was appointed. There is an exception to the rule, however, when under certain circumstances assets are within the forum's jurisdiction and the action is of an equitable nature.</block_quote> <bold>Same — same — same</bold>. <block_quote> 2. In action to impose a constructive trust upon certain real and personal properties held by the decedent, a resident of Iowa, in which the two coexecutors of decedent's domiciliary estate in Iowa were joined with residents of Minnesota as party-defendants and one of said co-executors was a resident of Minnesota and had been duly served in this state with a copy of the summons and complaint therein and where<page_number>Page 86</page_number> there were substantial assets within Minnesota over which such constructive trust was sought to be imposed, <italic>held</italic> that the district court acquired personal jurisdiction over the resident coexecutor of decedent's domiciliary estate insofar as the property located in Minnesota is concerned and that the district court erred in granting his motion to dismiss said action as to him as coexecutor of decedent's domiciliary estate for lack of jurisdiction.</block_quote> <bold>Same — same — property outside the forum</bold>. <block_quote> 3. With respect to real or personal property located outside of Minnesota, <italic>held</italic> that the district court's jurisdiction could not be sustained since to do so would constitute an unnecessary encroachment upon the domiciliary probate functions of the Iowa court thereby going in direct contravention to one of the main purposes for the general rule that suits against foreign representatives should not be entertained, that is, that an executor should be subject to one master — the domicile — rather than many masters who might issue inconsistent and onerous commands. Consequently, the district court properly granted said resident defendant's motion to dismiss the action for lack of jurisdiction as to him in his capacity as ancillary representative of decedent's estate in Nebraska and North Dakota.</block_quote> <bold>Same — same — local special administrator necessary party</bold>. <block_quote> 4. Where an action in the nature of an in rem proceeding is brought with respect to assets in this state and said assets are in the possession of a resident special administrator duly appointed and qualified in ancillary proceedings brought in this state for the probate of decedent's Minnesota estate, <italic>held</italic> that the local special administrator of said estate was an indispensable party to such an action and that the in rem phase of the present action must be dismissed for failure to join said special administrator as a party thereto. Consequently, even if it be assumed that jurisdiction was acquired over the nonresident coexecutor of decedent's domiciliary estate by service by publication under Rule 4.04 (4) of Rules of Civil Procedure, the district court did not err in granting the motion to dismiss the action as to him for failure to join an indispensable party.</block_quote>

<bold>Appeal and error — review — failure to assign errors —</bold> <bold>voluntary reply</bold>. <block_quote> 1. Since appellant failed to make any assignments of error, this court can consider its arguments only to the extent that respondent has chosen to voluntarily reply to them.</block_quote> <bold>Contracts — unambiguous</bold>. <block_quote> 2. Speculation as to the hidden and unexpressed intent of the parties to a contract cannot be used to alter the unequivocal language of the agreement. <italic>Held</italic> that the language of the contract in the instant case, insofar as it concerns the source of royalty payments to be made to the plaintiff, is neither ambiguous, incomplete, nor indefinite and hence there is no room for construction.</block_quote> <bold>Same — equitable estoppel — action consistent with contract</bold>. <block_quote> 3. While the doctrine of equitable estoppel is a flexible concept, its application in the instant case would be completely unjustified since the plaintiff did not take any action inconsistent with the provisions of the contract upon which her claim is based.</block_quote> <bold>Judgments — summary judgment — fact issue not involved</bold>. <block_quote> 4. While it is doubtful whether the question is properly before us for review, there does not appear to be any genuine fact issue involved, and consequently the trial court did not err in granting summary judgment.</block_quote>

<bold>Workmen's compensation — compensation rate — income loss of</bold> <bold>partial dependents</bold>. <block_quote> Case remanded, on review, with directions to the industrial commission to proceed to ascertain, compute, and determine the compensation payable to petitioners under M.S.A. 1949, § <cross_reference>176.12</cross_reference>, subds. 4, 14, 17, and 19, as amended by L. 1951, c. 457, § 5, the applicable statutory provisions, as partial dependents of their deceased son.</block_quote>

<bold>Old age assistance — claim of county against estate of husband</bold> <bold>for assistance furnished wife</bold>. <block_quote> Where a husband and wife own real property in joint tenancy and a lien of the county against such property under M.S.A. <cross_reference>256.26</cross_reference> for old age assistance furnished the wife is discharged upon her death under the rule of law announced in Gau v. Hyland, <cross_reference>230 Minn. 235</cross_reference>, <cross_reference>41 N.W.2d 444</cross_reference>, the claim of the county against the estate of the husband allowed under § <cross_reference>256.25</cross_reference> is not extinguished.</block_quote>

<bold>Appeal and error — appealable order — order denying motion</bold> <bold>for summary judgment</bold>. <block_quote> 1. In the light of the functional similarity between a demurrer and a motion for summary judgment in determining whether a litigant is entitled to judgment purely as a matter of law, this court holds that an order overruling the latter, when the court in its order certifies that the question of law presented by such motion is important and doubtful, may be appealed to the Supreme Court under M.S.A. <cross_reference>605.09</cross_reference> (4).</block_quote> <bold>Pleading — counterclaim — when compulsory</bold>. <block_quote> 2. The word <italic>transaction</italic> as used in Rules of Civil Procedure, Rule 13.01, does not embrace claims in tort and therefore the failure of a defendant to assert as a counterclaim any claim he has against the plaintiff does not estop him from asserting such claim in an independent action against the plaintiff.</block_quote> <bold>Rules of civil procedure — construction</bold>. <block_quote> 3. The words of a court rule, like those of a statute, must be taken and construed in the sense in which they were understood and intended at the time the rule was promulgated.</block_quote>

<bold>Criminal law — trial — argument of prosecuting attorney —</bold> <bold>reference to plea of guilty</bold>. <block_quote> 1. Where defendant had entered plea of guilty which was withdrawn on order of court, it was prejudicial error for prosecuting attorney to state in argument to the jury in trial on new indictment that there was a time when the plaintiff had entered a plea of guilty.</block_quote> <bold>Same — same — prejudicial argument — correction</bold>. <block_quote> 2. Court will not pass upon question of whether prejudicial argument was corrected by retraction or explanation where the record as to what occurred is in conflict.</block_quote> <bold>Same — same — improper argument of prosecuting attorney —</bold> <bold>effect of court's instruction</bold>. <block_quote> 3. Where the impact of an improper argument on minds of the jury may create substantial prejudice, it cannot be expected that court's cautionary instruction will operate to remove the effects of such prejudicial statement from the minds of the jury.</block_quote> <bold>Constitution — due process — fair trial</bold>. <block_quote> 4. Due process, as guaranteed by Minn. Const. art. <cross_reference>1</cross_reference>, § <cross_reference>7</cross_reference>, and U.S. Const. Amends. <cross_reference>V</cross_reference> and <cross_reference>XIV</cross_reference>, § 1, includes the right to a fair trial.</block_quote>