74 Iowa 412 | Iowa | 1888
I. Conrad Yan Brocklin was a resident of Illinois, and, prior to Ms death, executed a will, which was duly admitted to probate in that state in 1877. Among other bequests, he devised certain real estate in the state of Missouri to his son William A. Yan Brocklin and appointed Abraham T. Green and Henry 0. Yan Brocklin executors. The will was executed in 1871; and in 1874, he executed a codicil, which recites the fact that William A. Yan Brocklin is dead, and the testator devised said real estate to the widow and children of his son. In 1877, he executed a second codicil, which recites the fact that the testator had sold or exchanged the lands in Missouri for certain described lands in Benton county, Iowa. The material portion of this codicil is in these words: “It is, therefore, my will, and I hereby give and devise the said land in the county of Benton and state of Iowa, above described, to my executors in said will named, in trust for the following purposes : It is my will, and I hereby give said executors power to sell and convey said land, and to make, execute and deliver, as such executors, to the purchaser or purchasers thereof, good and sufficient deeds of conveyance of the same whenever they shall think it advisable to do so ; said sale to be made either at public or private sale, as my said executors shall deem best; and, in case such sale is made by my said executors, to divide the proceeds thereof in the same manner that I had in said codicil provided for the disposition of the proceeds of the sale of said land in the state of Missouri, in the foregoing codicil mentioned: provided, however, that, if my said executors have not made sale of said land before the youngest child of my said son William A. shall have arrived at the age of majority, then and in that case it is my will that said land shall not be sold by my said executors.” The persons named in the will qualified as executors in Illinois. The applicant to sell the' real estate caused the will to be filed in Benton county, and served a notice on the executors to qualify in this state, and execute
II. The material question is to ascertain the interest of the testator, and the power conferred upon, and title, if any, in and to the real estate, which is vested in the persons named as executors. The testator devised the land to “my executors in said will named, in trust.” This, we think, is equivalent to a devise to Abraham Green and Henry O. Van Brocklin, whom the testator had named as executors. The will or codicil also provides that power is given to “said executors” to sell and convey said land ; that is, the power is given the persons named as executors. If the testator had intended otherwise, it may well be presumed that he would have-said “my executors.” The power conferred on such persons was to sell the land “ whenever they shall think it advisable to do so.” The testator therefore reposed in the persons so named as executors a special “trust and confidence.” His intention, it seems to us, clearly expressed, is that they should act for him, in his place and stead, and that he vested in them the power to do so. The provisions of this will are different from those in Lees v. Wetmore, 58 Iowa, 170. In that case the executors were directed to sell, and the only discretion vested in them was as to when the sale should be made. In the present case a simple power to sell when they deemed advisable is given. But the material difference is that in the cited case the power was conferred on the executors, and not on the persons named as such. Nor is this case precisely like
. Affirmed.
