98 Ind. 502 | Ind. | 1884
On the 4th day of December, 1864, Chauncey Carter died testate, the owner of the north half of lot No. 20, in John Tipton’s administrator’s second addition to the town of Logansport, several other parcels of real estate and considerable personal property, leaving surviving him h'is widow, Mary Carter, the appellant, his daughter, and four grandchildren, to whom he devised said property in the following proportions: One-fourth to the widow, one-fourth to the daughter, and the balance to his grandchildren, and by his will nominated the father of said grandchildren, Joseph Culbertson, executor of his will and trustee of his estate. Pending the settlement of his estate, and more than five years after said Culbertson had assumed the duties of said trusts,
“ 1. Chauncey Carter died testate December 4th, 1864.
“ 2. By his \yill, in the first three clauses, he devised one-fourth of his.estate, real and personal, to his wife, Mary Carter; one-fourth to his daughter Emma, the appellant, and one-half to the children of his deceased daughter Rhoda and Joseph Culbertson. The fourth clause of the will is as follows : ‘ The foregoing devises and bequests are made subject to the following conditions, to wit: 4. I hereby constitute- and appoint my son-in-law, Joseph Culbertson, executor of my last will and testament, and trustee to manage the property above devised and bequeathed, investing the title in him.*505 as such trustee, empowering him, and enjoining him, to continue, carry on, and manage my business in merchandising and all other business, for the joint interests of his children, my wife and daughter Emma, for and during the term of live years, and as much longer as shall be mutually agreed upon by my said legatees; investing my said executor with full power under the will to sell and convey all my real estate or any part thereof at his own discretion and without any application to a court of law, except my present residence in the city of Logansport, which shall not be sold except by the consent of my wife, Mary Carter, and that my residence shall be occupied by my wife and daughter and by Joseph Culbertson and his family in common, as a home, during the pleasure of each of them. I further authorize my said executor to purchase and improve such real estate as he may deem necessary or expedient for the transaction of the mutual and joint business of my said legatees. And I hereby make and declare the foregoing to be my last will and testament.’
“ 3. The will was probated, and the executor qualified on the 30th day of May, 1865. The executor continued to act as such until the 1st day of June, 1878, when he was removed on appellant’s application.
“ 4. The testator died seized in fee of all the land described in the mortgage sued on except the east half of lot No. 56, old plat of Logansport.
“ 5. On the 26th of October, 1870, Mary Carter and the appellant, who was then married, her husband joining, sold and conveyed all their interest in the lands mortgaged to'Joseph Culbertson, the executor, as an individual, not as executor, for $10,500, for which he executed the note and mortgage mentioned in the complaint. The mortgage was duly recorded.
“ 6. Mary Carter and appellant brought suit in the Cass Superior Court, and on the 16th of November, 1878, recovered judgment of foreclosure for $7,848.75, the amount then due, under which all the mortgaged premises were sold except
*506 the east one-half of lot 56, old plat of Logansport, and the lots claimed by appellees.
“ 7. That plaintiffs realized on those sales the aggregate sum of $1,981.70.
“ 8. On or about March 27th, 1875, Culbertson sold the east half of said lot 56 for $8,500, and on that day the mortgagees released the mortgage as to that lot. Of that amount $4,000 were paid to the mortgagees, and credited on the mortgage debt.
“9. On the 10th of November, 1877, the mortgagees released the mortgage as to the west sixty feet of lot 49, old plat of Logansport. This parcel was then, and is, worth $6,000. That it was sold by Culbertson as executor, and that no part of the purchase-money was applied on the mortgage debt.
“ 10. Since the commencement of this suit Mary Carter has died testate, leaving appellant her sole devisee.
“11. On April 1st, 1871, Culbertson, as executor, subdivided and platted the north half of lot 20, in Tipton’s administrator’s second addition to Logansport, into twenty-two lots.
“12. On the 19th of August, 1872, the executor, as such, sold and conveyed one of those lots to appellee Cole, and at divers times during that year and 1873, as executor, sold and conveyed to the other appellees the respective lots claimed by them, all for a fair value.
“ 13. Appellant and her mother lived at Albany, N. Y., from 1871 until 1878, and had no actual knowledge of the subdivision of the north half of lot 20, or of any of the sales to the appellees, until the year 1878; but they did know that Culbertson continued to act as executor, and made no objection till they petitioned for his removal in 1878.”
The court, upon the facts found, stated the following conclusions of law:
1st. That Joseph Culbertson, as executor, had power to subdivide and plat the north half of said lot twenty.
2d. That said executor had power to sell and convey said*507 property after the expiration of five years from the death of the testator.
3d. That the interest and title of the appellant and her mother in said real estate were subject to the right of the executor to sell the same in execution of his trust.
4th. That the conveyance by them to him, and the execution of the mortgage by him to them, were made subject to the right of the executor to sell and convey said property.
5th. That the several conveyances made by him to the appellees conveyed to them all the title the testator had in the property at the time of his death.
6th. That the respective titles of the appellees are valid, and that they should recover.
A motion for a new trial was overruled, and judgment was rendered for the appellees. Exceptions were properly reserved, and the decisions of the court upon the facts found,- and upon the motion for a .new trial, are urged as error.
The facts found do not show that the parties agreed that said Culbertson should act as trustee for a longer period than five years, and as the conveyances to the appellees were made thereafter, the controlling question in the case is whether said Culbertson possessed any power under the will to sell the property after five years from the death of the testator. If he possessed such power, and the several conveyances were executed in accordance with the law, the title of the devisees was thereby divested, and as a consequence the mortgage of appellant no longer remains a lien upon the land. If, on the other. hand, the executor had no power to make such sales, or the conveyances were not made" in conformity with the law, the title of the devisees Mras not divested, and the appellant’s mortgage is a valid lien upon said land as against the appellees.
The solution of this question depends upon the proper construction of the fourth clause of the testator’s will. By that clause Culbertson was clothed with two offices, one that of trustee and the other that of executor. One he was en
We are, therefore, of opinion that Culbertson, as executor, possessed the power to sell and convey the real estate of said testator. '
It is further insisted that if said Culbertson possessed the power to sell and convey- such real estate, the conveyances made were inoperative, because the land was not appraised,
It is sufficient, perhaps, to say that this land was not ordered sold by the will, and hence it was unnecessary to comply with this provision of the statute. Aside from this, the executor was authorized to sell “ at his own discretion,” and the authority thus conferred necessarily operated as a different direction from those prescribed by the statute. The conveyances were not, therefore, invalid, because these requirements had not been observed.
The executor having power to make the sales, and having executed conveyances therefor in'conformity with the law, the purchasers were not compelled to see to the proper application of the purchase-money. Andrews v. Sparhawk, 13 Pick. 393; Gardner v. Gardiner, 3 Mason, 178.
.Having reached the conclusion that the title of the devisees was divested by the several sales and conveyances made, and as no question arises as to the facts upon which this conclusion rests, it becomes unnecessary to consider the questions raised by the motion for a new trial, as the appellant is not entitled to recover, whatever errors may have intervened during the trial. The judgment should, therefore, be affirmed.
Per Curiam. — It is therefore ordered, upon the foregoing opinion, that the judgment be and it is hereby in all things affirmed, at the appellant’s costs.