Hoeveler v. Hune

OpinioN, Me. Chibe Justice Paxson : This was a petition in the court below, filed by Erasmus Hoeveler, executor of Clara Lebling, deceased, for specific performance of a contract for the sale of certain real estate, entered into by the said Clara Lebling, in her lifetime, with the said defendant, Adelbcrt Hune. The latter is entirely willing to perform on his part, but alleges that the title to said real estate is not marketable. If this point is well taken, it is a sufficient reason why specific performance should not be decreed. [446] Tbe real estate in controversy belonged to William Hune. He devised it to his daughter Clara, and to her brother, Adel-bert Huné, the two parties to this contract. Clara agreed to convey her interest in said real estate to her brother, and this is the subject of the present contention. Up to a certain point, there appears to be no dispute between the learned counsel of the respective parties. It is not denied that, by the seventh paragraph of the will of William Hune, Clara took a good title in fee-simple to a moiety of the land, and that the language of this paragraph, in regard to division, ap-praisement, and sale of the land, is merely precatory and does not affect her title. But the defendant contends that the devise contained in the seventh paragraph is controlled by what follows in the eighth paragraph. The language of the eighth paragraph is as follows : “ I direct my hereinafter-named executor and friend, Aloy-sius Frauenheim, to take charge of my said daughter Clara’s interest of my estate, and invest the same for her benefit; or, should she elect to leave her entire interest in the farm during her natural life, at her death to see that her children only to derive any and all benefits from said estate, and not otherwise.” In regard to this paragraph, the learned counsel for the appellant say in their printed argument: “ Appellant hesitates to aver that said paragraph creates a trust, or restricts Mrs. Lebling’s control over the property bequeathed to her by said will; but, unless he gives it that effect, he is unable to assign any meaning or effect whatever to it, and hence submits‘that the title offered him is not such as he is entitled to.” If this will does create a trust, which is by no means clear, it does not affect the real estate. It can only take effect when the real estate is sold and the proceeds come into the possession of the executor. The direction to take charge of the estate was accompanied with an order to “ invest the same.” This could only be done after the land was converted into money. If we may be permitted to guess at the intent of the testator, it is at least probable that he thought the advice and assistance of a judicious friend, as to investments, might be useful to his daughter in case she sold her property. While she continued to hold it such advice and assistance were wholly unnecessary. [447] That the testator regarded the sale of her interest by his daughter as possible, if not probable, appears not only by his precatory words in the seventh paragraph of the will, but also by the eighth paragraph, where he says, “ should she elect to leave her entire interest in the farm during her natural life,” etc. This, we think, clearly shows that he did not intend to take away from his daughter the power of alienation conferred by the preceding paragraph. For, if Clara took only a life-estate, without a power of alienation, what election had she ? We are not called upon now to say whether the eighth paragraph of William Iiune’s will creates a trust. We are clear that as to the land there is no trust, and it will be time enough to decide the question of trust as to its proceeds when this contract has been specifically executed, and the executor has received this portion of her estate and settled an account. For the present we will pass upon only what is before us, which is that Clara Lebling had a marketable title to the real estate in controversy. The decree is affirmed, and the appeal dismissed, at the costs of the appellant.