42 Mo. App. 328 | Mo. Ct. App. | 1890
On February 15, 1887, James I. McKamey, now dead, made the following will:
“Fulton, Mo., February 15, 1887.
“I, James McKamey, of the county of Callaway and the state of Missouri, do make and ordain this to be my last will and testament in the manner: Hirst. It is my will that my debts be paid. Second. It is my will that Sarah and Laura Rickenbaugh each have five hundred dollars. Third. It is my wall that my wdfe, Margaret O. McKamey have, in addition to the amount secured to her by marriage contract, all my household furniture. Fourth. It is my will that my niece, Eva LaForce, have five hundred dollars. Fifth. It is niy will that the remainder of my estate be equally divided between my nieces and nephews (naming them). Sixth. It is my wall that James Rickenbaugh be the executor of this my last will and testament, and that he have power when requested by a majority of the legatees to sell my real estate and make distribution. In witness of which,” etc.
It was duly signed, witnessed and probated. Rickenbaugh duly qualified as executor and paid the debts out of the personal estate.
Pursuant to this agreement, three commissioners were appointed who divided the land into fourteen parcels, valuing said parcels, in some instances, in excess of the amount which the aggregate valuation made each distributive share, and in some instances below that amount The legatees drew lots for said parcels as had been agreed. Afterwards the executor made his report of sale to the probate court. In his final settlement, the executor charged himself with the total proceeds of the land, thirty-seven thousand and twenty dollars. In his final settlement, the executor took credit for five per cent., the commission allowed by statute on the price of the land. J. W. McKamey et al., a portion of the legatees, objected to the allowance of this demand; because: First, said executor never, within the meaning of section 222, Revised Statutes, 1889, made a sale of the real estate of said deceased ; second, said land was not sold by the executor as contemplated by the will of the deceased; third, there was no sale of said real estate by the executor for thirty-seven thousand and twenty dollars, nor for any other sum, but said real estate was partitioned among the devisees under the will by arbitration and agreement, and said executor did nothing in the way of a sale of said land, but simply made deeds to the real estate in order to pass title thereto to the respective parties by agreement; fourth, all that said executor did by way of transferring said lands to devisees under said will was done by trustee under said will, or of said estate, with said will annexed, and for such acts he is not allowed by law the commission named in said section 222. The probate court overruled these objections and granted an appeal to the circuit court.
Witness then read one of the deeds; the others being the same in form and recital. The instrument recites the making and terms of the will, the qualification of the executor, the request in writing, that the land be sold, the sale of the land, consideration, and so forth. This was all the testimony offered by the objectors.
The executor offered in evidence the executor’s deed, hereinbefore referred to. He also offered in evidence his annual settlement, in which he charged himself with the proceeds of the real estate, and credited himself with the amount paid to each devisee as his distributive share of such sale. He also introduced in evidence the refunding bond executed by the devisees :
. The executor offered the following receipt in evidence :
“ Received of James Rickenbaugh, executor of the last will of James I. McKamey, deceased, twenty-four hundred and sixty-eight dollars, as devisees thereunder, being my portion of the proceeds of sale of the real estate of deceased, sold and divided under authority of said will by said executor, this November 12, 1889.
“ Susan M. King,
“Joseph C. King.”
The other legatees gave receipts to the same effect and for a like amount.
This being all the evidence, the executor asked the following instruction : “ The court declares the law to be that the executor of James I. McKamey is entitled
The learned counsel for the executor makes the contention that the power of sale given by the will vested in the executor as stich and not in him as trustee; and this power was annexed to the executorial office, and its exercise was the performance of a duty as executor. Involved in this contention is a denial that the executor was clothed by the will with two separate and distinct trusts. The tenability of this
Over the exercise of that which the statute conferred upon him by virtue of his office of executor, the-probate court, as we have already stated, had a supervisory jurisdiction. But the contention of the executor is that, since he is, by the terms of the will, made the donee of the power of sale of the realty, the execution of this power is executorial. The power confided by the will to the executor authorizing him, in the happening of the contingency therein mentioned, to-
It is likely that he never expected there would be any occasion for the exercise of the power thus delegated, and his intention probably was, in case an unforeseen disagreement should arise among his devisees in respect to the division of the land, to avoid the consequent expense of partition, by providing that his friend whom he had made ■ his executor, and in whom he reposed a special confidence, should make a sale of it, and distribute the proceeds according to' the will. Under the will the power remained dormant in the executor until called into active existence by the contingency contemplated by the testator. This contingency might not have arisen for twenty-five years, or it may never have arisen at all. But, however long the time, it would seem the trust power remained dormant until vitalized by the contingency mentioned in the will. The executor in this quality of testamentary trustee was but the •donee of a naked power of sale, not coupled with an interest, and which was hampered with a limitation. If this power had not been vitalized until after he made his final settlement of the estate, or if he had resigned his executorship before the emergency arose, he would still have had authority under the will to execute this specific trust. Tainter v. Clark, 13 Metc. 220 ; Hazel v. Hagan, 47 Mo. 280; Owen v. Switzer, 51 Mo. 328; Littleton v. Addington, 59 Mo. 278. Campbell v. Johnson, 65 Mo. 430, does not impair the force of the case in 51 Mo. 328, supra, in so far as it is an authority to support the statement of the law which we have just made.
After a rather extended examination of the various points and authorities suggested in the very excellent briefs, with which counsel have favored us, we have reached the conclusion that the power given the executor to sell the land was not a power conferred upon him in his capacity as executor, but was rather a distinct and independent personal trust, whose execution depended upon a contingency which might, or might never, happen. It was a testamentary trust, existing entirely separate and independent of that of executor.
Assuming, but not deciding, that the trustee has executed the trust power with which he was invested by the will in conformity to the terms and conditions it prescribed, and, even then, the subject-matter of the controversy between the trustee and the devisees in respect to the commissions claimed by the former for service's rendered in the execution of the trust is clearly
In the case of Smith v. Burchard, 5 Denio, 169, it is held that the proceeds of a sale made by the executor, under a mere naked power contained in the will, are to be reckoned as part of the personal estate for the purpose of allowing commissions. In that case the title to the real estate was vested by the will in the executors. The power of sale conferred on them was absolute and imperative, except as to the time and manner of performing the duty imposed. The case is, therefore, distinguishable in its facts from the one at bar, and, even if it were not, we do not think the rule there declared can be invoked and made applicable to this case, in view of the law as it has been announced in the adjudged cases in this state, to which we have referred.
The conclusion which we have reached renders it wholly unnecessary for us to notice the other points to which our attention has been called by counsel. The judgment of the circuit court will be affirmed.