Green v. Alden

Whitehouse, J. This is a writ of entry in which the demanded premises are represented to be “certain real estate situated in Camden in this state, containing five and one-half acres more or less,” and more particularly described by metes and bounds. The plaintiffs derive title to the land through certain mesne conveyances from the dévisees thereof in trust, named in the will of William A. Keteltas of New York. Tbe defendant derives title from the inhabitants of the town of Camden to whom the land was sold by its treasurer as the property of Wm. A. Keteltas for nonpayment of taxes. In the will of William A. Keteltas after disposing of his burial plot in Trinity Cemetery, the testator proceeds in the second item as follows: [180] “ I give and bequeath and will and devise the rest and residue of all and every the estate real and personal and mixed, whereof I may die seized or possessed wheresoever and whatsoever, unto my executors hereinafter named, the survivors or survivor of them or such of them as shall qualify and undertake, the burthen of the execution of this my will in the trusts and upon the confidences nevertheless and for the purposes and effects hereinafter stated, that is to say: First — They my said executors shall take into possession, care for and manage my said estate, receive and. collect the rents, issues, incomes and profits thereof and from time to time invest the same as hereinafter directed.” In the eight succeeding items the testator directs the mode of investing and reinvesting the property, specifies the beneficiaries to whom the trustee shall pay the income and principal of the estate and prescribes the manner in which the trust shall be executed, and then closes as follows: “Lastly, I nominate and appoint my nephew Eugene M. Keteltas and Henry W. Clark husband of my niece Fanny, to be executors of this my last will and testament; hereby giving and granting unto them and to the survivors of them, or such of them as may undertake the burthen of the execution of this my will, full and ample power and authority in law to make, sign and deliver bonds, mortgages, leases and conveyances, and mortgage, lease or sell the whole or any part of my estate for the purpose of carrying into effect my full intention in this my last will and testament expressed.” This will was duly proved and allowed in the Surrogate’s Court of New York, and the executors therein named having accepted the trust and been duly qualified, letters testamentary were issued to them on the ninth day of February, 1876. On the nineteenth day of June, 1883, Eugene M. Keteltas and Henry W. Clark “as executors of and trustees under the last will and testament of Wm. A. Keteltas”, sold and conveyed the demanded premises to Mary- C. Keteltas from whom the plaintiffs acquired their title. The plaintiffs’ action was commenced on the twenty-ninth day [181] of December, 1896, and on the seventh day of August, 1897,An authenticated copy of the will of Wm. A. Keteltas and of the probate thereof in New York, was presented to the probate court in the county of Knox in this state, and duly allowed as the will of Wm. A. Keteltas and filed and recorded in the Probate Court of Maine. Upon this state of facts it is earnestly contended in behalf of the defendant that, inasmuch as these foreign executors never qualified by giving bond in this state and never received letters testamentary from the probate court of Knox County, they had no control over the pi’operty of the testator situated in this state, and no power or authority to execute a conveyance of the demanded premises. It has been seen, however, that by the terms of the will of Wm. A. Keteltas, unrestricted power to sell and convey the whole or any part of the estate, was expressly given to Eugene M. Keteltas and Henry W. Clark as donees of a power in trust. It is true that the same persons were named as executors of the will, but the devise of the estate was made to them as trustees or donees of a trust power and not as executors. Their authority as trustees had no necessary relation to the office of executor, and might with equal propriety have been conferred upon any others not named as executors. It was a power which, in the absence of any testamentary provision to the contrary, might have been executed by the trustees without the intervention of executors. Conklin v. Egerton, 21 Wend. 429. See also Hall v. Bliss, 118 Mass. 559. In Newton v. Bronson, 13 N. Y. 587, (67 Am. Dec. 89,) the executor did not hold the fee in trust, but had ouly a naked power under the will and yet the court said: “It is argued that the defendant’s office ofi executor does not extend to the lands in Illinois, upon the principle that letters testamentary and of administration have no force beyond the 'jurisdiction in which they are granted. Hence, it is said, the defendant cannot effectually perform the judgment of the Supreme Court not being able, as it is insisted, to affect the title to lands out of the state. But the [182] authority of the defendant in respect to real estate is not conferred by the probate court. He is the donee of a power at common law and under the statute; and although it was by the will made a condition to his acting under the power that he should qualify as executor, when he has performed that condition, he acts in conveying the land as the devisee of a power created by the owner of the estate, and not under an authority conferred by the surrogate.” In the principal case, in order to execute the power conferred upon them and accomplish the purposes of the trust created by the will, it was necessary that the legal title should be vested in the trustees. Morton v. Barrett, 22 Maine, 257; Cleveland v. Hallett, 6 Cush. 407 ; 3 Redf. on Wills, 537. It is not in controversy that the will of Wm. A. Keteltas was executed, and allowed in conformity with the laws of New York, but having only two attesting witnesses, it is not in accordance with the laws of Maine. It was duly allowed and recorded, however, in the State of Maine in the county where the demanded premises are situated, and under the provisions of sections thirteen and fourteen of chapter 64 of our revised statutes, as construed in Lyon v. Ogden, 85 Maine, 374, the devise in question was effectual and operative in giving to the trustees -named a valid title to the demanded premises for the purposes of the trust described. They were not required to have letters testamentary issued to them, or to qualify as executors by giving bond, in this state, in order to make a valid transfer of their title. In making that conveyance they were not in fact acting as executors, but as donees of a trust power, in whom the legal title had been vested by act of a testator having his domicile in New York where their account was to be settled. It is true that the copy of the will and of the probate in New York, was not recorded in this state until long after the conveyance of the demanded premises by the trustees, but it is familiar and well-settled law in this state, that in such a case the estate of the devisees would vest by relation back to the time of the death of the testator and not to the time of the filing and recording of the will. Spring v. Parkman, 12 Maine, 127; Putnam Free School v. Fisher, 30 Maine, 523; Grant v. Eliot and Kittery Mutual Fire Insurance Co., 75 Maine, 196. [183] The tax title set up by the defendant is so manifestly defective, that it is evidently not seriously relied upon as a ground of defense. In the first place, it does not appear that the land was described with the precision and fullness required by law. It is represented as “ a lot of land containing five acres or thereabouts, situated on the easterly side of Bay View Street at Camden Village within the town of Camden aforesaid, on Ogier’s Point, so-called.” Such an indefinite description is clearly insufficient. Libby v. Mayberry, 80 Maine, 137; Bingham v. Smith, 64 Maine, 450; Greene v. Walker, 63 Maine, 311; Orono v. Veazie, 61 Maine, 433. It nowhere appears, that the treasurer exposed for sale and sought offers for a fractional part of the premises sufficient to pay the tax and legal charges and that he could obtain no bid therefor. This requirement is not fulfilled by the recital that he “ offered for sale such part of the above described real estate as would be sufficient to pay the tax, interest and charges thereon.” Ladd v. Dickey, 84 Maine, 190 ; French v. Patterson, 61 Maine, 210. The recitals in the deed are in other respects defective, but even if complete, it is well settled that they would not be evidence of the truth of the facts stated. Libby v. Mayberry, supra; Ladd v. Dickey, supra. Judgment for plaintiffs.