Boshart v. Evans

The opinion of the Court was delivered by Rogers, J. The exceptions on which the plaintiffs in error rely, are to the charge of the Court in relation to the appraisement of the 10th of March, 1797. The tenor of the charge undoubtedly is, that if the appraisers were in fact appointed by the executor, a valuation made, and the property accepted, the plaintiff had no title. The charge took from the jury, in a certain event, all necessity off inquiring into the validity of the deed of 1813. If the jury, say the Court, adopt this view of the facts, namely, that there was an appointment by the executor of the appraisers, a valuation under it, and an election by Barbara, the present plaintiff has no title. Again, that if there was, by three creditable and judicious men, duly appointed, a valuation, and there was an election by Barbara, the plaintiff cannot recover. And in conclusion they say, that if there was no such valuation, and no such election, the jury will decide upon the transactions of 1813 and subsequent years. The Court instructed the jury, that the husband had the right to appoint the appraisers, and the wife the sole right t.o elect to take the premises at the valuation ; or in other words, that Andrew Geyer had both the right to appoint, and to elect; for the right of election of the wife could only be exercised through the medium of her husband. That the testator had the right to vest this extraordinary power, in the executor, no person can dóubt; but before we give the will a construction which vests him with a power affording such temptation to fraud, it is not unreasonable to require plain demonstration in-the will of intention, or a necessary or inevitable implication of authority to appoint the appraisers. In England,it is said, that even an act of parliament made against natural equity, as to make a man a judge in his own cause, is void. Hob. 87. 12 Mod. 2 Rawle, 373. To appoint a judge in his own cause is equally against natural justice, and little less objectionable. Here, the power to appoint the appraisers is an implied power; for it [561] cannot be pretended that the testator has given the power in express words. It sometimes happens, as is said in Sug. on Powers, 133, that a testator directs his estates to be sold for certain purposes, without directing by whom the sale shall be made. In the absence of such a declaration, if the fund be distributable by the executor, he will have the power by implication. But this is only true when the management of the fund is expressly given to the executors. In Bentham v. Wiltshire, cited in 1 Jacob & Walk, 196, the vice chancellor decided, that when the produce was to be divided amongst the children, the absence of any devise did not give the power to the executors. It is therefore not universally true, that when there is no other person authorised to sell, the executors shall. It might then have been doubted whether, in the absence of an express direction to that effect, the executors would have had the power even to sell, much less to exercise the more questionable power to appoint persons to value the premises. To remove all doubts, the act of the 24th of February, 1834, provides, that all powers, authorities and directions relating to real estate, contained in any last will, and not given to any person by name, or by description, shall be deemed to have' been given to the executors thereof; but no such power, authority or direction shall be exercised or carried into effect by them, except under the control and direction of the Orphans’ Court, having jurisdiction of the accounts. When the testator intends that the executor shall have a power'over his real estate, as in the instance to sell, he gives it to them in express terms; and this would seem to negative any implication of power. The' natural construction of the will, and particularly under the peculiar circumstances of the case, is to give the power to appoint the appraisers, to the devisees, viz., the three children of the testator, who are equally interested in the valuation. But in whom is the right of election 1 The first choice, by the will, is given to Andrew; and Andrew having died, by a codicil the testator devises all the legacies and estate intended for his son, unto his three children, Catharine, George and John — in other words, he places them precisely in the situation of the deceased parent. The language of the vyül is very general, and is sufficiently comprehensive to embrace the right of election; and the construction would seem to be necessary to carry into effect the general intention, which manifestly was, to beep the homestead in the family; preferring, which is very natural, the male branch, as represented by the children of his deceased son Andrew. But it is said, that the election could not be made by the guardian of the children, and as a consequence, that none could be made until the youngest child came of age. Granting this, which is by no means clear, yet this is no reason for depriving the children of a valuable right. In Patten v. Randall, (1 Jac. & Walk. 197,) it is said, if a testator will give property to minors, and order a sale of it, that cannot authorise the Court to substitute by implication, executors or trustees in their place, and to [562] take away the power of sale from one, and give it to the other. So also, in the same case, it is decided that a power of sale not expressly given to any one, is not implied to the executor, because the devisees of the estate are minors. The opinion of the Court not only deprives the children of the first choice, but of any choice or election whatever ; a construction which necessarily defeats the testator’s general intention, which was to retain, if practicable, the estate in the family. If-they have any fight of choice, no reason can be given why that right should be postponed in favour of Barbara, who in the will had the second choice. No such intention is indicated in any part of the will. We are also of the opinion, that the power of appointment, and the election, were not duly executed. For whenever a power is given in relation to the transfer of real estate, the power must be executed in writing. The guardianship accounts were materia], and in that aspect only, as indicative of fraud and imposition upon the children. But it is said, the only interest of the devisees is money, not land, and that ejectment is not the proper remedy: that where land is directed to be converted into money, or money into land, it is to be treated as that species of property into which the one or the other is directed to be converted. But the direction to sell is contingent, and not absolute; and until the contingency happens, the executors have no control over the estate,, nor any interest whatever in it. Until the appraisement, and refusal to take the premises, after the death of the widow, the legal estate descends to the heirs-at-law, of whom the plaintiff was one, or to them as devisees; and in either case he can sustain an ejectment, if otherwise entitled to the possession. Judgment reversed, and a venire de novo awarded.