22 Ind. 18 | Ind. | 1864
In February, 1851, Caroline Jones, of Youngstown, Ohio, being a feme covert, made her last will, which contained the following item:
“I give and bequeath to my husband, Ira Jones, the house and lot in Youngstown, now occupied by us, being the same lot conveyed to me by my mother, Lucy Fdwards, late of Youngstown, deceased, bearing date September 15, 1840, for and during the natural life of said Ira Jones, upon the condition that the said Ira Jones, in a suitable, proper and fatherly manner, provide for and take care of our unfortunate daughter, Lucy Jones, during their joint lives. And if, in the judgment of the said Ira Jones, at any time after my decease, it shall be necessary to the comfortable support of either the said' Ira Jones, or Lucy Jones, that the aforesaid house and lot be sold, then I do hereby authorize and empower him, the said Ira Jones, to sell and convey the same in fee simple, the same as he would do were the same premises bequeathed to him in fee simple by me; and in that case, my will is that the avails of the said property sold be applied in part, or in whole, as the circumstances of the said Ira and Lucy, or either of. them, may require, by the said Ira Jones,
In March, 1851, Cornelia died. In June, 1852, the trust and power created by her said will, passed, according to its terms, to Albert Jones. On the 16th of November, 1852, the said Albert and Lucy, being then residents of Indianapolis, the said Albert, for the purpose of carrying out the objects of said trust, exchanged the Ohio property, with one Warner, for property in Indianapolis, and took a deed from him for the same in fee, providing therein expressly that the same should be held by said Albert “under the same restrictions, and subject to the same conditions in reference thereto, as those imposed upon” him by said last will, concerning said trust, which deed was recorded January 27, 1853, of all which the defendants had notice; and on the 28th of October, 1853, the ' said Albert conveyed said Indianapolis property to one W. H. L. Noble, under whom the defendants hold; and they have received the profits therefrom to the amount of 1,000 dollars.
In March, 1857, said Albert Jones, the trustee under Cornelia’s will, died; and, on the 30th of July, 1858, Virgil J. Huey, the plaintiff below, was appointed, by the Marion Common Pleas, successor in the trust to Albert Jones, de- ; ceased.
At the March term, 1862, said Huey commenced an action in the Marion Circuit Court, to recover possession of the property in Indianapolis which was taken by Albert Jones, the former trustee, from Warner, in exchange for the property in Ohio, bequeathed in trust for the support of Lucy Jones. The ground of his action, as presented by his counsel, is want of power in Albert Jones, his predecessor in the trust, to sell the .Indianapolis property. It is claimed that the sale of the Ohio property exhausted his power of sale under the will. It might be doubted whether the will authorized the exchange of the Ohio property for other real estate situated any where.
“ It is plain that the will gives no power to sell anything but the Ohio property which it devises. The only hint in the will, at any power to sell, is in these words : ‘If, in the judgment of said Ira at any time after my decease, it shall be necessary to the comfortable support of either the said Ira Jones or Lucy Jones, that the said house and lot be sold, then I do authorize and empower him to sell and convey the same in fee simple, the same as he would do were the said premises bequeathed to him in fee simple by me; and in that case, my will is that the avails of said property sold be applied, in part or in whole, as the circumstances of the said Ira and Lucy may require.’ Surely, it can not be pretended that, if the sale of this property under this will should happen to be, as it was, for other lands, this provision authorized the sale of these other lands. The other lands- are the ‘avails’ mentioned in the will; and so far from being directed to be sold, they are directed to be ‘applied’ to Lucy’s support.
“If, on the face of the will, a doubt remained as to the trust thereby created, attaching on the real estate in controversy, the deed made to Albert Jones, under which the appellants claim the said real estate, must remove that doubt. This deed conveys the property- to Albert Jones, ‘under the
Taking the position, then, as a starting point in the ease, that the act of Jones in exchanging the trust property in Ohio for the real estate in question, in Indiana, was valid, we think he possessed the power of selling this Indiana real ■estate, for the reason that without such power he might not be able to accomplish the purpose of the trust created by the will. "What was that trust, and what the power given to execute it? The trust was to provide a “comfortable maintenance and support ” to Lucy Jones during her life, and the power was to sell said property and apply the avails of it, “in part or in whole,” to that purpose, “according to his [said Albert 'Jones’] best judgment.” It was not the use of or income from said property, but the whole of it, the “avails” of the sale'of it, that he was to apply if necessary. And if the trustee had a right, which is conceded by the appellee, to receive the consideration of the first sale in specific arti
Another point. An act of the Legislature of Indiana took effect on the 7th of March, 1863, which provides “that all sales of real estate in this State heretofore made in good faith by trustees, or by domestic or foreign executors, in conformity with the provisions of any deed of trust or will, executed and admitted to probate, in this State, or in any other of the United States, and for which a full consideration has been paid to the party entitled thereto,” are confirmed and made valid, and conveyances made by such trustees to the purchasers are declared to vest in the latter the legal title to the land. Acts 1863,16.
This was a curative statute; and, if valid, aj)plied to this case, notwithstanding it was enacted pendente lite.
Says Chief Justice Marshall, in The United States v. The Schooner Peggy: “It is in general true that the province of an appellate Court is only to inquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment, and before the decision of the appellate Court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, and of that no doubt in the present case has been expressed, I know of no Court which can contest its obligation.” 1 Cranch. Rep. 103, S. C.; 1 Cond. Rep. 256.
See as to curative statutes, The Board, &c. v. Bright, 18 Ind. 93, and the cases collected in Walpole v. Elliott, id. 258.
In this case, then, the trustee had the power, as an abstract proposition, to sell, if the exigencies of the trust required a sale; hence bona fide purchasers, that is, purchasers ignorant of propriety or not, of sale, would hold, independent of the curative statute. And, if the trustee acted erroneously, hut honestly, in making the sale it would seem that the curative statute healed up the consequences of the error, as to all persons.
The judgment below is reversed, with costs. Cause remanded.