Adams, Ex'r v. Dugan, Sheriff

WELCH, J. This action was brought to enjoin the sale of land under execution. The trial court sustained demurrer to plaintiff’s petition. The petition alleged that plaintiff is the qualified and acting executor of the estate of Walter Barr Steedman, deceased, and is also the testamentary trustee of the real property under a trust thereof established by the will of such decedent. A copy of the will to which reference was made was attached to the petition. The same contained the following provisions: “All the real property which I am possessed of at the time of my death, I bequeath and devise unto Mack B. Adams, to have and to hold the same in trust upon the terms and conditions for the uses and purposes, and with the powers and duties following, that is to say: “First: To hold, possessed, manage and control the said estate and every part thereof, in the same manner as if I were living, and the trustee shall have power to sell, mortgage, convey, lease, and dispose of the same upon such terms and in such manner and for such length of time and for such prices as to my said trustee shall seem meet and proper, and I give and grant unto my said trustee full power and authority to invest and reinvest all moneys, which may come into his hands in such manner, in such securities, or other property as to my said trustee shall seem meet and proper, and all such property which shall be so acquired shall be imbued with the same trust as the original. “Second: And the trustee shall pay the income of the said trust to my wife, Kathryn Bell Steedman, until her death, in the event that I die first. *157 “Third: At the death of my wife, in the event that I die first, or upon my death, in the event that she dies first, the income of said trust shall be paid to my children, George Ward Steedman, (Mrs.) Reba Adams, and Aubrey Earl Steedman. If at the time of my death, in the event that my wife dies first or upon her death in the event that I die first, one or more of my children shall be dead or whenever one of my children shall die during the time that the children are receiving the income of the said trust, then in that event the issue or issues of said child shall receive that child’s proportionate share by right of representation or per stirpes but if there be no living blood descendants of my child then that child’s portion shall be divided between the other beneficiaries. This, is in the event that my children shall not have sold their beneficial interest in the estate in the manner that I have hereinafter set out, if they have so sold then that grantee shall take the child’s share. “Fourth: In the event that one or more of my children should desire to sell their beneficial interest in the trust estate it is my wish and desire that they be so allowed. To sell their interest it shall be necessary for them to cause to be made a written instrument signed and acknowledged before some officer authorized to take acknowledgments, said instrument to be executed by the parties and then served upon the trustee, who shall acknowledge receipt upon the instrument and it shall then be recorded in the Recording Office under both real property conveyances and also personal property conveyances in every county wherein any of the trust property may be located. “(Signed Walter Bar Steedman) “Fifth: Eleven (11) years after the death of my wife in the event that I die first or eleven (11) years after my death in the event that she dies first the trust herein created shall at once cease and the trustee shall pay over and deliver the property constituting the trust estate both principal and accumulated interest free from the trust, to my then living children or to their grantees if they have sold their share, or if they have not sold their share but have died to the persons whom they have designated in their last will and testament, or if they do not make a will or do not provide for disposition of this property then it shall go to their living issue, if they have any, per stirpes or by right of representation, if they do not leave any issue then that deceased child’s portion shall be distributed between the other persons entitled thereto. In the event that none of my children shall be alive at that time nor designate anyone to take the property, nor have sold their share, nor leave any living issue then the property shall be paid over and distributed by the trustees to the persons who would then be my heirs at law as the same may be determined by the laws of the State of Oklahoma in force at that time in like manner as if I had then died intestate. “In the event that I should die before my wife and she should elect to take one-third (1/3) of my property as provided by the laws of descent and distribution of the State of Oklahoma, as. she has a right to do, rather than take under this will it is expressly provided that this shall in no manner render the balance of this will void but it is my intention that in such event the remaining two-thirds (2/3) shall be kept in the trust and the income therefrom shall be paid to my children as I have above set out.” It is further alleged that the administration of the estate of Walter Steed-man is pending in the county court of Kiowa county, Okla., and has not been closed and the assets have not been distributed; that there are debts and allowed and unpaid claims against the estate which, together with widow’s allowance and expense of administration, will necessitate a sale of all or a part of the real estate involved for the purpose of payment thereof. It is further alleged that the defendant sheriff of Kiowa county, Okla., has levied upon said real estate under execution issued out of the district court of Oklahoma county, Okla., in a cause wherein Florence Steedman had obtained a personal judgment against George Steedman. The levy so made was upon “the following described interest in said real estate of said debter *158 situated in Kiowa county, State of Oklahoma, to wit: “The undivided beneficial interest of said George Steedman, being the same person as George Ward Steedman, as remainderman, in and to the estate, and in the trust created under the last will of Ward Bar Steedman, deceased, including an undivided one-third interest as remainderman in and to the following described real estate, to-wit, . . (land description omitted.) It is further alleged that said George Steedman has no interest in the real estate subject to levy and sale upon execution, and that such levy and effort to sell thereunder would operate to cloud plaintiff’s title. The trial court sustained defendant’s demurrer to such petition and dismissed the cause, resulting in this appeal by plaintiff. The question presented here is whether George Steedman had an interest in the land which is subject to levy and sale under execution. It is obvious from the terms of the will that the legal title to the land is vested in plaintiff, Mack B. Adams, and that there is thereby created an active trust. 60 O. S. 1941 § 144, and Hill v. Hill, 49 Okla. 424, 152 P. 1122. The trustee is given full power of sale. That holds true as to any portion of the real estate remaining even though the widow might elect to take under the statutes of descent and distribution. The will does not provide that George Steedman shall receive any part or portion of the specific real estate described in the return of levy. The levy is sought to be made upon the real estate. Thewill vests title thereto in plaintiff Adams as trustee. George Steedman can never own an interest in that specific property except, first, the same is not sold by the trustee, and, second, that said George Steedman be living at the end of the trust period. In view of those contingencies, it is little more than mere speculation to assume or anticipate that he will ever receive any part or interest in the specific realty. As to George Steedman’s present interest in this land, it is but little more, if any, than a mere contingent expectancy. At best, then, George Steedman can be classed only as a contingent remainder-man. The great weight of authority is to the effect that such contingent interest is not subject to levy and sale under execution. In discussing the rule in 23 C. J. pages 335 and 336, the notes to the text state one of the sound reasons for the rule as follows: “The reason given is that such a policy would encourage gambling and speculation and that the purchasers at such sales would not put a high estimate on the possibility of the defendant in execution afterward acquiring any interest in the land and that the danger of sacrifice is a strong reason for not subjecting contingent interests to sale under execution. Plumlee v. Bounds, 118 Ark. 274, 176 S. W. 140. To same effect Kenwood Trust, etc., Bank v. Palmer, 209 Ill. A. 370.” In 33 C. J. S. page 169, subdivision D of sec. 36, under executory devises, it is stated: “. . . However, such a devise subject to a condition which makes the estate wholly contingent and a mere possibility cannot be reached on execution.” The case of Crum v. Crum, 65 Ohio App. 431, 30 N.E. 2d 448, supports the statement and is quite similar in facts to the present case. We quote paragraph 3 of the syllabus of the Crum Case as follows: “Where such will contains the further provisions that ‘if any of my said children be not living at the time of the final distribution of my estate, then their share shall pass to their heirs who are of my blood, and if all the children of any one of my said sons be deceased at the time of the final distribution of my estate, the wife of such deceased son, should she then be living, shall inherit the one-fifth share of such- said deceased son, the remaining four-fifths *159 to revert to the residue of my estate,’ the interest of the children of testator is contingent upon surviving the wife of testator and is not subject to levy and sale on execution.” , A statement helpful in many respects herein is found in 33 C.J.S. page 175, a part of subdivision C of see. 41, as follows: “. . . Under many of the statutes, the rule is laid down that where the legal title is vested in the trustee under a passive, simple, or dry trust, with no duty except to convey to the person ultimately entitled, the interest of the cestui que trust is subject to seizure and sale under execution; but where the land is held by the trustee under an active trust, requiring the continuance of the legal title in him to enable him to perform his duties, the equitable estate is not subject to execution. It is also the generally accepted doctrine in the United States, in construing statutes based on 29 Car. II, that in order to subject the equitable estate of a cestui que trust to execution at law, the trust must be clear and simple, and for the benefit of the debtor alone, and that equitable interests held jointly with another person are not subject to sale under execution.” In Home Bank of Lexington v. Fox, 113 S. C. 378, 102 S. E. 643, this syllabus rule is stated: “Execution cannot be levied on a contingent interest of the debtor under a testamentary trust.” See, also, San Diego Trust, etc., v. Heustis, 121 Cal. App. 675, 10 P. 2d 158; B. F. Goodrich Co. v. Thrash (Wash.) 131 P. 2d 734. We are in accord with the statement in 33 C. J. S. page 167, sec. 36, to the effect that the general rule is that all possible interests in land, contingent or otherwise, which are real and substantial, are subject to seizure and sale on execution, and that generally if the interest is assignable it is subject to execution. Where the contingencies are such, however, as to render the interest in the specific property a mere remote possibility, the difficulty in determining the value of the interest for sale upon execution gives strong practical and legal reasons for denial of the right to so levy. Especially so where sacrifice of the judgment debtor’s expectancy is probably without substantial benefit to the judgment creditor. Under the facts here the value to be placed upon the contingent interest of George Steedman in this real estate can be nothing more than speculation and the benefits to be gained by the judgment creditor are equally so. We conclude that the legal title of the trustee, who must retain the same in full performance of his active trust, should not be subject to the cloud of such an effort to sell under execution. The judgment is reversed, and the cause remanded, with directions to overrule defendant’s demurrer to plaintiff’s petition, and to proceed consistently with the views herein expressed. GIBSON, C.J., and OSBORN, BAY-LESS, DAVISON, and ARNOLD, JJ., concur. HURST, V.C.J., dissents.