Hallum v. Silliman

HENRY, Associate Justice. —Appellants, who claim title through [349] their mother’s will, brought this suit to recover land from the defendants, who claim as purchasers from the executor of the same will. The decision of the controversy depends upon the proper construction of the following clause in the will: “It is my will and desire that when my son Robert Hallum shall arrive at the age of twenty-one years, any balance which may remain of my estate after the payment of my debts and the sale of so much of my estate as shall be sufficient in the opinion of my executor to support and educate my children as above provided, be divided as follows, to-wit: One equal portion in value to each of my children then living at the time of the division; or if my son Robert Green Hallum shall die before he arrives at the age of twenty-one years, then the division of my estate, if any remains, shall be at the time of his death.” The lands in controversy were sold and conveyed by the executor after the son Robert Green Hallum had arrived at the age of twenty-one years. There is no question made about the authority of the executor to sell unless his power was terminated by reason of Robert Green’s arrival at the designated age. The evident purpose of the testatrix was to make provision for the education of the younger children before any division of her estate should be made in which her eldest son should participate. Aside from any reason given for it, the direction in the will is plain and imperative that partition of the estate should be made only of so much of it as might remain after the sale of enough for the payment of the debts of the testatrix and the provision of an allowance for the support1 and education of her children. The son’s arrival at the age of twenty-one years neither had the effect of defeating the gift nor modifying the power of the executor to make the sale. The judgment is affirmed. Affirmed. Delivered November 7, 1890. ’ _