Thomas W. Draper, Sr., was a resident of Lancaster county and the owner of lot 7, block 37, in the city of Lincoln, on which was situate a business building used for rental purposes. On the 5th day of May, 1917, he died testate, leaving his widow and three sons and a daughter, his heirs, as his legatees. The minor defendants hereinafter mentioned are the issue of one of the sons now deceased. In the codicil to his will, Charles E. Draper, Alice Draper Knowlton, and Nicholas Ress, were named as executors, who afterwards entered upon the discharge of their duties. That part of the will pertinent to the questions here presented is as follows:
“First: It is my will and I do direct that all of my just and provable debts be paid as soon as it can be conveniently done, and as same fall due, except as hereinafter provided in this will; in the debts thus to be paid I include the expenses of my last illness and burial, the charges for füneral, and all the expenses of administering my estate, and to the end that it shall not be necessary to make needless expense in that behalf it is my will that my executors for the purpose of carrying into effect any provisions 'of this will shall have full and complete power to make
“Second: It is my will and I do direct that after the payment of my debts, proved and allowed against my estate in course of administration, that my executors hereinafter named, or whoever shall at such time, sustain such office, shall take complete control and charge of all of the estate then remaining, and hold and manage the same in trust, with the increment thereof for the following purposes: First, to pay to my beloved wife Julia Draper for her proper support and maintenance, in case she shall elect to abide the provisions and conditions of this will, during the term of her natural life a sum of money of not less than fifty ($50.00) each and every month; second, to pay from the earnings, rents and issues of the estate as the same shall come into the hands of the executors all interest charges and other fixed charges incident to administering the trusted estate, and to reduce as said executors shall find expedient the interest bearing debt from time to time as occasion may offer, and third, after the payment of the allowance to my said wife Julia Draper, and other payment provided for in this paragraph, said executors shall at intervals of one year make annual distribution of any surplus rents and issues, and pay the same in equal shares, except as hereinafter provided, to my children.”
The fourth paragraph of the will provides for a distribution of the property remaining when the daughter arrives at the age of 30. This is changed to 50 in the codicil. The will provides that before any part of the distributive share is türned over to the son, Thomas Draper, Jr., $3,000 of his share shall be paid to the other heirs, the codicil raises this amount to $8,000.
On the 16th day of December, 1921, the executors then acting, Ress having died and E. C. Boehmer having been
Following the decree, the contract with Eager was closed, the first instalment under it was paid, and possession of the lot turned over to him; he thereafter collecting the rents and profits.
Plaintiff, James Draper, is the legatee by that name designated in the will. He instituted this suit, seeking to
As a second cause of action, it is further alleged that the defendants, Charles E. Draper, Alice Draper Knowlton, and Julia Draper, were misled by false statements made to them by defendant Boehmer into the execution of the contract to Eager.
For a third cause of action, the petition alleges that defendant Eager has failed to comply with the terms of the contract on his part, and that the contract be declared at an end by reason thereof, and equitable relief granted.
. Defendants William H. Draper and Maxine J. Marshall, by their guardian, answered by filing general denials.
Defendant Eager answered, admitting certain paragraphs of plaintiff’s petition, and denying each and every other allegation.
Defendant Boehmer, for answer, states that he is administrator de bonis non of the estate; that the contract was made with defendant Eager; and that application
Plaintiff submits for reversal of the trial court, first, that the will did not clothe the executors with the authority to sell the lot in question; second, that urgent necessity is expressly made a condition precedent to a sale by the executors, which did not exist; third, that the will itself negatives an intention on the part of the testator to grant power to sell. These will be considered together as they are each and all answered by a determination of the scope and purpose of the will in that regard.
The intention of the testator, as gleaned from a consideration of''the entire will and codicil, taken together, is controlling. Albin v. Parmele, 70 Neb. 740, and cases cited in paragraph 2 of page 743 of the opinion.
The evidence shows, and we so find, that the widow elected to take under the will; that the property owned by the testator at the time of his death consisted of the lot with the improvements thereon, which were rented, and certain personal property; that in paying the debts the personal property had been exhausted, or nearly so; that no distribution had been had; that there were mortgages on the lot to an amount of many thousand dollars, much of which would soon become due, as heretofore set out, and as found by the district court on the application for construction of the will; that there were taxes unpaid; that the widow could not maintain herself oh $50 a month; that the building on the lot was decaying, both within and without, and
These facts, with others, were submitted to the district court, together with the contract and other evidence, and the court found, as we find, that the will authorized the sale by the executors; it also found that $52,000 was the fair market value of the lot, together with the improvements; that the contract was without fraud or deception, and was one for the best interest of the trust; that there was necessity for the sale in order that the executors might carry out the provisions of the will and comply with their duties in the premises.
These were the conditions confronting the trustees. By accepting the trust they accepted the provisions of the will, defining their duties and responsibilities. They were accountable for wilful waste and failure to faithfully discharge the trust imposed. The widow having elected to take under the will, she was bound by its provisions, as were the other legatees, that the distribution was not to be had until the daughter was 50 years of age, she being at the time about 25. The trustees must provide for the widow, not less than $50 a month, and more if more were needed, during her natural life. They must care for the property and preserve it for the legatees. Distribution, if anything was left for distribution, could not be had until after a sale was made.
As we construe the will, they were authorized, and it was their duty to sell the lot in question, when, in their
The decree confirming the contract of sale supports us in our conclusion as to the necessity for the sale and the judgment exercised by the trustees in entering into the contract. Then the executors’ judgment, as to the contingency as well as the necessity, cannot be questioned unless it should appear that they erred wilfully, or from such gross negligence as would imply fraud or wilfulness, neither of which existed in this case. 21 R. C. L. 782, sec. 10; Matthews v. Capshaw, 109 Tenn. 480.
As to the proceedings had in the district court on the application for construction of the will and direction as to the Eager contract, the question of jurisdiction, save as to that raised by the claimed failure to give notice, is not before us, and is not considered. The proceeding was not one seeking a judicial sale of real estate. It was solely one for the construction of the will as to the scope of the executors’ authority to sell the lot, and if it was found by the court that they were clothed with such authority on the happening of a certain contingency or condition as to and of the trust, and, whether or not $52,000 was the fair value of the lot. Such a proceeding was not an adversary action, and the notice to interested parties was not necessary to give the court jurisdiction. In this case, however, the court found that due and legal notice was given, and made the same a part of the decree. Then the court is one of general jurisdiction, and every presumption is ' in its favor until the contrary is proved, which in this case has not been done, and the judgment of the court is approved by us.
Having examined every question of law and fact present
Affirmed.
Note — See Executors and Administrators, 23 C. J. p. 1174, sec. 393; 24 C. J. p. 160, sec. 639; p. 162, sec. 640.