Anderson's Adm'r v. McGowan

B. F. SAFFOLD, J. This case was before this court at the January term, 1868, (42 Ala. 280,) on some of the questions now involved, especially in respect to the"depositary of the powers conferred by the tesiator’s will. The executor appointed by the will, Isaac E. Andersonj renounced his right, and he and. Osborn S. Jones were appointed administrators cum testamento annexo. Under the power of sale given in the will, they sold all of the property, real and personal, on a credit of twelve months, with [467] interest from tlie day of sale, after due notice by publication. The probate court, in compliance with the decision of this court, regarded the sale as void for want of authority in the administrators, and charged them with the value of the personal property, omitting the land and its rents. The will of the testator contained four items. By the first, all of his property was bequeathed to his wife and children. The second and third were as follows : “Article 2. It is my will that the shares of property which may be allotted to my children shall be sold by my executor as soon as my debts are paid off, to the highest bidder, on a credit of twelve months, with interest from date, and the purchase-money secured by. such personal security as my executor may direct; and thé said property shall be sold at such place, and on such notice as he may think proper. Article 3. It is my will that my executor shall lend out the money which may arise from said sale, belonging to my children; at legal interest, and collected ánnually; and I wish this to continue until my said children shall attain their majority, or shall marry.” The fourth item appointed his brother, Isaac E. Anderson, his executor. This court, in 42 Ala. 280, held that the power of sale conferred by the will was a personal trust, and did not attach to the executorship. ■ That such a trust did not pass to the administrators cum testamento annexo, and consequently the sale made by them was void. Perhaps the most thorough examination which this subject has received in our reports, is contained in Hitchcock v. U. S. Bank of Penn., 7 Ala. 386. There, after appointing his wife his executrix, the testator devised and bequeathed all of his property to her in trust, with full power to sell, publicly or privately, all or any part thereof, and to reinvest and resell for the payment of debts, and for the benefit of his wife and children, until the latter became of age respectively. In a last codicil he speaks of his executrix having power to sell real estate. This devise was construed to vest the property in his wife as trustee personally, and not as executrix, though an apparent doubt was expressed as to what would be the construction of the codicil [468] if it stood alone. One of the reasons given for the construction adopted was, that the devise was not for the purpose of sale merely, but that the estate should be kept together and held in common, by her, for her benefit and that of the children. In Judson v. Gibbons, 5 Wend. 224, the testator gave and devised to his executors thereinafter named, and to the survivor and survivors of them, all the residue and remainder of his property, upon trust to take care of and manage the same, and invest the income thereof in stocks or other securities, until his youngest child should attain the age of twenty-one years, and then to divide, &e. This was held to be a devise to the persons named as trustees, and not as executors. It was also held that one of them who refused the executorship was properly made a party to the suit as devisee, because he had not disclaimed or released the trust also. This conclusion was based somewhat on the fact that the devise was not merely to sell, but to hold and manage. In Perkins v. Moore, Judge &c., 16 Ala. 9, the testator directed certain shares of his estate to be kept and loaned out upon interest by his executors until either of the beneficiaries should marry or arrive at lawful age. It was held that the executor’s title and possession were as executor, and not as trustee. And the rule of construction is asserted to be, that the executor should be considered as holding the legacy in his character of executor, unless it clearly appears from the will that the testator intended it should be held by him as trustee, and not as executor.— See 10 Gill & Johnson, 27. In Leavens v. Butler, 8 Port. 380, the testator gave his executors most ample power to sell, encumber, or otherwise dispose of all or any part of his real estate, to pay debts, or for distribution, or any other purpose connected with their trust. The court held that there was no devise to the executor, but the powers conferred were annexed to the office of executor. But the authorities are not agreed on this matter, and perhaps as many can be found on one side as the other. The diversity proceeds, no doubt, in great part, from the [469] consideration that an administrator appointed by the court should not be allowed to exercise the extraordinary powers conferred by the testator upon some valued friend, whose integrity and capacity had decided his choice. In discriminating between the executor and the administrator, and declaring that the powers of the former were restricted to the person, the distinction has not always been observed between a devise to trustees as such, and to executors as such. . The common law was tenacious of the difference between real and personal property. Our institutions do not require the distinction to be so jealously guarded, though it is well defined, and we would not remove it. Section 1609 of the Eevised Code enacts: “Where lands are devised to several executors, or a naked power given them by will, to sell, the survivor or survivors, and the acting executor or executors, when any one or more of them resigns, or refuses to act, or is removed by a court of competent authority, and also an administrator with the will annexed, has the same interest in, and power over such lands, for the purpose of making sale thereof, as the executors named in such will might have had.” The authority given is not confined to the ease of a naked power, but includes a devise to the executor. It would not embrace a devise to trustees as such. The point of the question in this case is, whether the powers given in the will attach to the office of executor, or to the person named as executor. The recitals are, “ It is my will that the shares, &c., shall be sold by my executor,” (Art. 2); and, “ It is my will that my executor shall lend out the money,” &e., (Art. 3). There is no mention of any trust, and the proceeds of the sale are the legitimate subject of executorial care. There is not only no exclusion of the intention that the executor should take as such, but it is inconceivable how more definitely a conveyance to to him in that character could have been expressed. The executor, in relinquishing his right to execute the will, and afterwards accepting the administration and exercising the power of sale, most clearly indicated the capacity in which he acted. The intention of the testator must govern the construe [470] tion of his will, and it is a legitimate presumption that one making his will since the adoption of the statute contained in section 1609 of the Revised Code, if he intended to confine the powers given to the person nominated as his executor, would have avoided the operation of the law in express terms. We regret to depart from the judgment of this court heretofore rendered in this case, (42 Ala. 280,) but our convictions of the proper construction to be given to the will compel us to decide that the sale made by the administrators with the will annexed was valid, and that the settlement of their accounts must be made on this basis. The making of the sale before the debts were paid was immaterial, because no rights of other parties were, or could be prejudiced, under the circumstances. As the bequests were, or ought to have been, vested in debts well secured, the onus .is on the administrators to show that they were properly administered. Unless the necessities of the children required the collection of some of the money in Confederate currency, or the threatened insolvency of some of the debtors, or some other equally urgent cause made it necessary, the property ought not to have been so exchanged. We can not give any more definite instructions than those contained in the case of Houston v. DeLoach, 43 Ala. 364. If it is shown that Mrs. McGowan’s interest was sold with the other by her consent, the administrators are chargeable with her share. Any credits claimed against her for Confederate money which she received without. constraint should be allowed. Any participation by her with the administrator or his agent in receiving Confederate currency, or lending money to be returned in that currency, for him, -would not transfer his liability to her, because she had no authority in the matter, and he should have acted on his own responsibility. The decree is reversed and the cause remanded.