Dilworth v. Rice
48 Mo. 124
Mo.
1871
Check Treatment
Wagneb,, Judge,

delivered the opinion of the court.

There are two questions to be determined in the consideration of this case. They grow immediately out of the will of Richard Wells, deceased, and the action had thereon in the Probate Court. The sixth clause of the will of the testator, Wells, contained the following рrovision: “All of the real estate belonging to me in this county, except that bequeathed to my wife and daughter, I direct and empower my said executor, hereinafter named, to 'have divided into seven equal parts, as nearly as may be, leaving such roads as he may deem necessary for the use and convenience of the lots so laid off, and sell the same at such time and on such terms as he may think fit; hereby empowering him, the said executor, to convey all my right, title and interest in said lands to the purchaser or purchasers ; аnd the proceeds of said sale to be distributed in equal parts among my seven children, named in the seventh clause of this will.” The executor named in the will *131died before tbe execution of tbe power; and an administrator with tbe will annexed was appointed and qualified, wbo proceeded to carry out tbe directions of tbe will and sell tbe property. This suit was brought against tbe defendant, wbo bolds under one of tbe purchasers, and as a defense be set up two grounds: first, that tbe probate of tbe will was illegal; and second, that tbe аdministrator with tbe will annexed bad no authority to sell under tbe will. The court below decided against him on both these points, and be sued out bis writ of error. Tbe record shows that in tbe probate of tbe will only one witness was examined, although it was attested by two, and tbe requirement of tbе. statute is that every will must be attested and proved by two subscribing witnesses. It is thence argued that as there was a defect in the proof, and tbe law was not complied with, tbe probate was a nullity, and that all proceedings thereafter were void. On tbe other band it is insisted that tbe probate of a will under our law is a judicial aot, and that a judgment of probate cannot thus be collaterally impeached, and that it is entitled to full force and effect until set aside or annulled in tbe manner prescribed by statute.

Tbe character of a judgment of probate has been before this court ‍​‌​‌​‌‌​​​‌​‌‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​​‌‌​‌​​​​​​‌‍on two previous occasions. In tbe first case (Jourdan v. Meier, 31 Mo. 40), where tbe question was raised as to the sufficiency of tbe proof on tbe taking of tbe probate, tbe judge, in: delivering tbe opinion, said: “Tbe insufficiency of the proof is. no objection to tbe admissibility of tbe record of probate. If a. will is admitted by tbe clerk or court upon insufficient proof, .the-law has provided a mode by which tbe validity of tbe will may be disputed and decided. Those wbo are interested in thе- matter are allowed five years within which they can contest tbe validity of tbe will. If tbe five years are suffered to elapse, and they labor under no disability, tbe probate is binding. A judgment of probate is like any other judgment of a court of competent jurisdiction. It must be set aside, or annulled, or reversed in tbe mode authorized by law, and until this is done it stands as a judgment binding upon all tbe world. It is not material upon what evidence tbe judgment is based, for that is not a part of the-*132judgment.” In Creasy v. Alverson, 43 Mo. 18, it was again declared that the probate of a will was a judicial act.

Thе judgment of a court probating a will is like the judgment of any other court of competent jurisdiction; it cannot be impeached collaterally. It matters not that the court erred, and that the evidencé upon which it was founded was wholly insufficient to justify it. That would simply constitutе an error in the proceeding of the court rendering it. But the judgment would be valid until set aside, reversed, ‍​‌​‌​‌‌​​​‌​‌‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​​‌‌​‌​​​​​​‌‍or annulled in the proper manner. The evidence is no part of the judgment, and whether it was rendered upon sufficient or insufficient, legal or illegal evidence, cаn only be inquired into by a direct proceeding. The evidence does not confer jurisdiction upon the court; it is merely the means by which the conclusion is arrived at. As respects this point we see no objection to the ruling of the court.

The next question is one of .more difficult solution. As a common-law power, it is doubtful whether the authority to sell could have been transmitted to the administrator with the will annexed. There has been much refinement in the books as to who may execute a power, and as to where the right of survivorship exists. Where the power is to several persons having a trust, capacity, or an office in its nature like that of the executors of a will, susceptible of survivorship, and any of them die, the power will survive unless it is given to them nominatim, as to the individuals by name. In this latter case the рower would not survive unless it was coupled with an interest in the donees of the power. (State, to use, etc., v. Boon, 44 Mo. 260.)

But it has been held that where the terms used in creating the power, detached from the other parts of the will, confer merely a naked power tо sell, and yet the other provisions of the .will evince a design in the testator that the land should be sold at all events, in order to satisfy the whole interest of the will, there, also the power survives. In this latter case it is not a naked power in the sense of Lord Coke’s general rule, but is coupled with other trusts and duties which require the execution of the power to sell. (Franklin v. Osgood, 15 Johns. 553, and cases cited.). To obviate inconveniences ‍​‌​‌​‌‌​​​‌​‌‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​​‌‌​‌​​​​​​‌‍which were found to result *133from the strict rule of the common law on this subject, a statute was passed in England in the reign of Henry VIH which authorized the executor or executors qualifying, or the survivor of them, to make a valid sale of lands devised by the will to be sold. Similar statutes have been enacted in many of the States, and our statute has extended the rule still further. It enacts that “the sale аnd conveyance of real estate under a will shall be. made by the acting executor or administrator, with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the trust.” (1 Wagn. Stat. 93, § 1.)

This provision is trаced back to our territorial laws, but the point now raised is submitted for the first time to the court for adjudication. In New York the statutory provision is that “ where any real estate or any interest therein is given or devised,by any will legally executed, to the executors therein nаmed, or any of them, to be sold by them, or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then a sale made by the executor or exеcutors who shall take upon them the execution of such will shall be equally valid as if the other executors had joined in the sale.” Under this statute the following case arose: A testator by his last will and testament appointed three persons his executors, and authоrized them, or the survivor of them, to sell and convey any part of his real estate, “in case they should find it proper or most fit in their opinion ” to sell the same for the purpose of paying his debts. Two of the executors neglected to qualify, and never acted as such. The other executor duly qualified and took out letters testamentary, in his own name only, and subse-quehtly sold and conveyed a portion of the testator’s real estate, for the purposes specified in the will. It was held that the power contained in the will was wеll executed; that the conveyance was valid, and that the statute — which provided that where real estate was devised to executors, to be sold by them, or was ordered by any last will and testament to be sold by them, and any of the executors neglected or rеfused to qualify and act as such, the sale *134might be made by the executor or executors who took upon themselves the execution of the will — applied as well to discretionary as to peremptory powers of sale. (Taylor v. Morris, 1 Comst. 341.) In Kentucky, where the statute ‍​‌​‌​‌‌​​​‌​‌‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​​‌‌​‌​​​​​​‌‍enacted “that the sale and conveyance of lands devised to be sold shall he made by the executors, or such of them as shall undertake the execution of the will,” etc., a contrary opinion seems to have been arrived at.

In Wooldridge v. Watkins, 3 Bibb, 349, it was held that this stаtute did not apply to a case in which the testator had “left in the power of his executors to sell or exchange any part of his estate, real or personal, as they might judge necessary for the advantage of his estate.” The case was decided in 1814, without any elaboration or review of the authorities. In 1830, in the case of Coleman v. McKinney, 3 J. J. Marsh. 246, it was held that the statute did apply to a case in which the testator had directed his executors to sell his lands for the payment, of his debts if his personal estate should bе insufficient for that purpose, because the contingency on which the sale was to be made did not depend on the judgment of the executors.-

In Clay v. Hart, 7 Dana, 1, decided in 1838, that court affirmed the law as laid down in Wooldridge v. Watkins, and added that the like doctrine had been long and inсontrovertibly settled inJEngland in reference to this statute of 21st Henry VIH, ch. 4; but Judge .Buggies, in his thorough and exhaustive criticism of the cases in Taylor v. Morris, shows conclusively that the Kentucky court-erred in its rulings, and that it was not sustained by the authorities. The same question was presented to the Court оf Appeals ,in Virginia upon a statute of that State, from which the Kentucky statute was literally copied, and a directly opposite decision was the result.

The case alluded to was that of Brown v. Armistead, 6 Rand. 593. The power of .-sale in the testator’s will was in these words: “ My will and desire is that my executors hereinafter appointed sell at public sale all my land, provided the said land will ‍​‌​‌​‌‌​​​‌​‌‌‌​​‌‌​​‌‌‌‌‌​‌‌​‌​‌‌‌​​‌‌​‌​​​​​​‌‍sell for 'as much, in their judgment, as will be equal to its value ; and the money arising from such sale to be placed in the hands of my friend Stark Armistead, one of my executors here*135inafter appointed, whom I vest with power to apply the said money to any use or uses he, in his discretion, may deem best for the benefit of my wife and all my children.” The testator appointed three executors, all of- whom refused to act. Administration was then granted upon the estate, when the sale wаs made and the conveyance executed by an administrator with the will annexed. Judge Carr, in delivering the opinion of the court, said: “We will inquire, in the first place, could the administrator execute the power of sale given by the will to the executors ? In 1 R. C., p. 388, § 52, it is said the salе and conveyance -of lands devised to be sold shall be made by the executors, or such of them as shall undertake the execution of the will, if no other person be thereby appointed for that purpose, or' if the person so appointed shall refuse to perform the trust, or die before he shall complete it. Thus stood the law as passed in 1785 (12 Stat. at Large, 150) ; in 1794 was added the rest of the clause, as it now stands in the revisal of 1819, viz: ‘But if none of the 'executors named in such will shall qualify, or,'after they have qualified, shall die befоre the sale and conveyance of such lands,, then in those cases the sale and conveyance thereof shall be made by such person or persons to whom administration of the testator’s estate, with the will annexed, shall be granted.’ This law, as passed in 1785, was taken from 21st Henry VHI, ch. 4. It was admitted in the argument that if the testator had directed a positive and unconditional sale of the land by his executors, the case would have come directly within the law; but they are directed to sell, provided the land will sell for as much, in their judgment, as will be equal to its value; and this, it is insisted, renders it a special confidence reposed in the individuals appointed executors, which is personal to them, and can only be exercised by them, and not even by a part of them, but by the whole of them only. This point was argued with great strength, but the researches of the counsel had enabled him to produce no cases in support of it, nor have I found any.” The power was accordingly adjudged to be well executed. That case is in point, and even stronger than the one we are now considering. The testa-' tor in the present case, it will be observed, directs in his will *136absolutely that his land shall be sold. There is a discretion as; to Ikying out roads, and as to time and terms of sale; but taking the whole will together, and the object sought to be attained, it is-not beliefed that the confidence or trust was reposed specially in the executor named in the will.

The statute law of the State authorizing the sale of land by an administrator with the will annexed, where the executor has failed or neglected to act, has existed ever since we have been a State. Every testator, in making his will, must be presumed to be cognizant of it, and I am satisfied both on principle and on authority that the statute should be held to extend to all powers of sale conferred on executors where they are perеmptory in their character, although they may be accompanied with and involve the-exercise of a discretion. Wills may thus be carried into effect according to their true intention, when otherwise they would be defeated by circumstances unforeseen by the testator, or at least their execution would become difficult, dilatory and expensive.

I think the judgment should be affirmed.

The other judges concur.