32 Cal. 436 | Cal. | 1867
Jacob C. Beideman, a resident of San Francisco, died on the 8th of July, 1865, seized of a large amount of real estate in the City and County of San Francisco. He left a will bearing date the 26th day of January, 1863, in which it is provided as follows : “First—The executor of this my last will and testament will, within one year after my decease, sell at public auction, in proper subdivisions, at said city and county, after giving two months notice of such sale, a.11 the real estate I shall own, be seized, possessed of or interested in at the time of my decease, etc.; * * and from the proceeds of such sale the said executor will pay the expenses of my last sickness, the expenses of my funeral and all my just debts. * Second—I give and bequeath and devise to Henry F. Williams, of the said City and County of San Francisco, twenty thousand dollars in money, proceeds of the sale above provided for, remaining after the said expenses and my just debts are paid; in trust, however, for the following purposes and none other or different—that is to say,” etc., specifying the purposes. He then gives twenty thousand dollars more, “ proceeds of the sale above provided for,” to said Williams, “in trust” for other uses specified ; then various other sums, in trust for sundry other purposes; then: “Ninth—And from the proceeds of the sale of my property, remaining after all the above gifts, devises and bequests are fully provided for, I make the following gifts, devises and bequests: that is to say”— specifying a large number of bequests, many of which are to various public and charitable institutions. After which, he disposes of the residue to other designated parties upon speci
But two questions are presented by the parties for our decision :
Firstly—Did the power to sell, as set forth in the will, pass to the administrator with the will annexed? And if so,
Secondly—Was the power to sell limited to one year after the death of the testator, or does it still exist, notwithstanding the expiration of the year ?
As to the first question, the power was not merely personal. It was not conferred upon Samuel H. Parker in his individual character; it was given to the executor as such ; it was given virtute officii. In Jackson v. Ferris, 15 John. 345, the provision of the will is: “I will and order that all my just debts
In this case the executor is not named in the clause at all. It is: “ the executor of this, my last will and testament, will, within one year after my decease, sell at public auction,” etc. It is clearly given virtute officii. This is not a mere naked power, but a power coupled with various trusts, which could only be carried out through an execution of the power. The power, therefore, did not die with the party who was named executor in the will, if there is any other mode provided by law for executing the power, notwithstanding the death of the party named as executor. In Franklin v. Osgood, 14 John. 553, Mr. Justice Platt says: “There is also another class of cases which clearly show that where the terms made use of in creating the power detached from the other parts of the will confer merely a naked power to sell; and yet the other provisions of the will evince a design in the testator that at all events the lands are to be sold, in order to satisfy the whole intent of the will, then, 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. (Barnes’ Case, see Wm. Jones R. 252 ; Cro. Car. 282; Pow. on Dev. 297, 307 ; Hard. 419 ; Cro. Ch. 382 ; Cro. Eliz. 26 ; Sug. on Pow. 141.)’’ Zebach v. Smith, 3 Bin. 69, is to the same effect. In this case it is clearly manifest from the other provisions of the will that there are trusts depending upon the execution of the power. The power was not the principal thing. The objects of the will are expressed in the various trusts and dispositions made of the proceeds of the sales of the property of the tes
Section forty-two of the Probate Act provides that, “ When all the persons named as executors are incompetent, or shall renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed shall be issued.” Section forty-eight provides, that “ Administrators with the will annexed shall have the same authority as the executor named in the will would have had, and their acts shall be as effectual for every purpose.” Section ninety-seven provides, that, in case the executors shall die or the powers be revoked, the Probate Court shall also issue letters of administration with the will annexed, and “ the administrator so appointed shall give bond in like penalty with like sureties and conditions as hereinbefore required of administrators, and shall have the like power and authority.” And section one hundred seventy-eight provides: “ When * * any property directed by the will to be sold, whether for payment of debts or expenses, or for any other purpose, the executor or administrator with the will annexed may proceed to sell without the order of the Probate Court,” etc., and when there are special directions in the will he is to be “ governed by such directions.” The statute, then, in express terms provides a mode of executing the will of the testator in case of the death or failure to act, or other disability of the executor named in the will. These provisions were in force at the time of the making of the will in question, and were a part of the law in view of which the will must have been executed. The testator is presumed to have understood that in case of the decease of the party named as executor without any other provision in the will supplying his place, the Probate Court would be authorized to appoint an administrator with the will annexed, who would be thereby invested with all the powers of the executor named in the will, subject only to such special supervision and limitations as were
As to the second question, upon a consideration of the entire will, we entertain no doubt that the testator did not intend to limit the exercise of the power to the period of one year after his decease. He directs the property to be sold within one year, but the provision is directory, merely. As before shown, the power is coupled with, and' subsidiary to, certain express trusts, and is given" as the means, and only means, of carrying out those trusts. The testator determines the objects upon which his bounty shall fall, and the mode by which his wishes shall be carried out. He nowhere indicates any contingency upon which his property, or the proceeds of the property, shall be diverted from the objects specified, or upon which the trusts shall fail. He declared his purpose that the property should be sold, and the proceeds disposed of upon certain trusts for the benefit of certain specified parties and charities. These were the principal objects to be accomplished—the essentials of the will; the rest related to the mode of accomplishment. True, he directs the sale to take place within a year, but time is not of the essence of the thing to be done, or of thé power. He was, doubtless, desirous that the beneficiaries should, at the earliest practicable period, enter upon the enjoyment of his bounty—hence the direction. To give the will any other
We are satisfied, upon a view of the entire will and the reasoning of Mr. Justice Johnson in Daly’s Lessees v. James, 8 Wheat. 539, and the Court in Miller v. Meetch, 8 Pa. St. R. 424, that it was not the intention of the testator to limit the sale to one year after his decease, and that the power to sell still continues.
The order refusing an injunction is therefore affirmed.