Hosch v. Hosch's Executors
181 Ky. 781
Ky. Ct. App.
1918
Check Treatment

Opinion of the Court by

Judge Clarke

Affirming.

Frederick Hosch, on November 25,1898, died testate, a resident of Jefferson county, Kentucky, leaving a widow, Barbara Hosch, and seven children, namely: appellants C. F. Hosch, George Hosch, and the appellees, Regina Hosch, William Hosch, Katie Hosch, Lena Hosch and Louis Hosch.

At the time of his death Frederick Hosch was engaged in the business of cleaning, dyeing and pressing clothing, and owned, in addition to this business, three parcels of real estate in the city of Louisville. By his will, which was duly probated, he directed that during the lifetime of his widow his business should be continued by his widow, Barbara Hosch, and two of his children, Regina Plosch and William Hosch, whom he named his executors and trustees; that at the termination of the trust, all of his property should be divided among his children, two-thirteenths of which he gave to each child except appellant, C. F. Hosch, who, because of advancements made to him, was to take but one-thirteenth in the final division of the property. The will further provided that during the continuance of the trust the profits of the business and the income from his estate, after the payment of all expenses, should be paid, one-half to his widow, and the other half to his children, two-twenty-sixths to each, except C. F. Hosch, who was to receive but one-twenty-sixth thereof. The daughter, Regina Hosch, as one of the executors and trustees, was empowered by the will to fix the salaries of such of the children as stayed at home and worked in the business. After the death of Frederick Hosch and the probate of his will, the executors and trustees named, qualified and *783continued to act as such until the death of Barbara Hosch, which occurred on the 26th of January, 1915. After the death of the widow, Barbara Hosch, this action was filed by appellant, C. F. Hosch, seeking a sale of the property left by. Frederick Hosch, and also a settlement by the executors and trustees named in the will. In his petition the plaintiff alleged that all of the property left by the testator was jointly owned and in the possession of the plaintiffs and defendants, and that same could not be divided without materially impairing its value, or the value of plaintiff’s interest therein. The prayer of the petition ásked that the cause be referred to the master to ascertain and report the amount of debts against the estate of the decedent and to settle the accounts of the executors and trustees, and that the rights of the devisees in the property under the will be adjudicated; that the business and each parcel of real estate owned by the decedent at his death be sold, and that there be a distribution of the proceeds thereof among the plaintiffs and defendants, according to their interests therein. Reference according to the prayer of the petition was made to the master but before he had finished taking the proof with reference to the matters referred to him, and before he had filed a report, the two defendants who were executors and trustees under the will, Regina and William Hosch, filed an answer and cross petition in which they denied the right of the plaintiff to demand an accounting of them as trustees, but nevertheless asking that the cause be referred to the master for a settlement of their accounts. Thereafter these same two defendants filed an amended answer, counterclaim and cross petition in which they alleged that the property left by Frederick Hosch was owned jointly by and in the possession of the plaintiffs and defendants, and was indivisible; that it was necessary that all of the real and personal property thus owned by them be sold in order that it might be divided among the parties to the action; and the defendants united in the prayer of the petition in asking that the property be sold for a division. Thereupon, all the parties being before the court, upon motion of these defendants and cross petitioners, the cause was submitted for a judgment and order of sale for a division among all the parties, and the court, upon the pleadings, exhibits and proof, adjudged that all of the described real and per*784sonal property was jointly owned by tbe parties in tbe proportions named in the will; that their interests therein were vested and in possession; that each piece of said property was indivisible, and that for division it was necessary that all be sold, and its sale by the master was ordered. It was provided, however, in the judgment that:

“The interest of the parties hereto in and to the property herein described is subject to the rights of the parties as between themselves and to such claims of creditors of said trust estate, as may be established in, this action, and it is ordered that the proceeds of the sales herein provided for shall be retained in court pending the determination of the rights of the parties and the claims against said estate.”

Before-the submission,'defendants offered proof by affidavit that the business and each piece of real estate was incapable of division,' and would have to be sold as a whole. The only proof offered by the plaintiff was the affidavit of Arthur E. Mueller:

‘ ‘ That in his opinion a sale of any. of said property at the court house door at the present time would result in realizing on the property' not more than 60 per cent of what could be realized oh it at private sale under ordinary circumstances. That it is a well known fact that real estate values in city property at the beginning of a war are always depreciated, whereas such values increase at the close of the war and even during the progress of the war if the war lasts any great length of time.”

1. The first insistence upon this appeal is that this judgment was premature, and that no order of sale should have been entered until the master had reported his findings under the order of reference, especially in view of the affidavit of Mueller that at that time, owing to the fact that war had been declared recently, real estate .values were greatly and abnormally reduced. In view of the fact, however, that a sale for the purpose of division and distribution among joint owners was asked by the petition as well as the answer, counterclaim and cross petition of the defendants, and since, upon all of the pleadings and exhibits, such a sale was manifestly necessary before there could be a division *785among these joint owners, and as the interest of each party was a vested interest in possession in indivisible property, no other fact needed to be established before a sale could be ordered; and the court did not need to await a report of the master, which could not affect the undisputed joint ownership of the parties or of the right of any or all of them to have the property sold for a division; but related merely to the proper distribution of the proceeds of the sale among thé parties. The order of sale was not, therefore, premature, and, tne appellants are not entitled to a reversal of that judgment; nor was there anything in the affidavit of Mueller sufficient to defeat or defer indefinitely the right of any of these joint owners to insist upon their statutory privilege to have the property sold for the purposes of division.

2. The next insistence is that the court erred iri| overruling appellants’ exceptions to- the report of sale. The principal contention under this head is that the property was sold for debt, and not having been appraised by the master before sale, the sale was void. The basis of this contention is that as several or all of the defendants had filed with the master claims for their services rendered to the trustees in conducting the pressing and cleaning business during the existence of the trust, these claims were debts against the estate of the decedent, and that the sale was for the purpose of paying this indebtedness of the estate. But this contention is clearly without merit because the action is plainly under ¡section 490 of the Code for a sale for division of indivisible property jointly owned and held, under which circumstances, as has been frequently held by this court, an appraisement was not necessary. The property was sold solely upon the ground that it was indivisible, and in accordance with the prayer of the petition as well! as that of the answer, counterclaim and cross petition; and it was not sold to pay the debts of the' decedent, of which there were none.. The fact that the judgment provided that there should be no distribution of the proceeds of the sale until after a settlement was made by the trustees and an adjustment had of the claims of the several joint owners against the trustees during the existence of the trust did not make the sale one to pay debts or alter the fact that the sale was for the purpose *786of division of jointly owned, indivisible property any more than wonld the fact that before a distribution could be had, allowances would have to be made to the executors and the trustees for their services and their necessary expenses in administering the estate and conducting the trust.

Appellants have also' charged a conspiracy on the part of the appellees to overreach them in the sale and to purchase the property for themselves; but these charges are not even sworn to nor is there a particle of proof to sustain them.. The sale was made by the commissioner of the court after due advertisement. Appellants attended the sale in person; and, before the sale, in addition to the advertising by the commissioner, they had banners printed and placed upon the property, giving notice of the fact that it would be sold, and of, the time, terms and place of the sale. They insinuate, but offer no proof to support the insinuation, that appellees caused these banners to be removed from the property. There is an entire absence of any proof to sustain this charge.

The Third street lot sold for $9,000.00, and while one witness, testifying for the appellants, fixes the value at a much higher price, the evidence as a whole, in our judgment, sustains the chancellor’s finding that it brought approximately its full value, and there is no evidence that upon another sale it would bring more. The Market street lot sold for $2,500.00, and for this property the appellants have, since the sale, found a responsible person who offers, if it is resold, to pay1 $3,000.00 for it; but this fact alone, in our judgment, is not sufficient to authorize the setting aside of a judicial sale that-has been regularly made after due advertisement, for, as said by the chancellor in his opinion in overruling the exception to the sale of this lot:

“If there were not occasional bargains to be had at public sales there wonld be few in attendance upon sales. If the court were to set aside every sale because some one afterwards offered more than the successful bidder, there would be such discouragement of bidders as to make judicial sales utterly ineffectual. It is better! that a few purchasers get an occasional bargain than that the court should endeavor to bring about a loss tot the bidders at its sales and thus discourage bidding.”

*787Even if we assume, as we no doubt should, that this offer proves that this property was sold at an inade-i quate price, the inadequacy is not gross nor accompanied by any circumstances which would tend to cause an explanation of inadequacy, nor was it attended by any apparent unfairness or impropriety or oppression on the part of those connected with the sale. Hence this case does not, in our judgment, come within the rule announced in Morton v. Wade, Jr., et al., 175 Ky. 564. The fact that the purchasers at the sale were five of the seven joint owners, two of whom had been trustees under the will for the management of the property during the existence of the then expired trust, is not a circumstance that in any way tends to invalidate- the sale or to indicate that it was unfair or oppressive as against those who did not join in the purchase; since the property was not .being sold in the furtherance or for any purpose of the trust but solely for division after the expiration of the trust.

Wherefore the judgment is affirmed.