Watson v. Martin

STONE, J. Charles I). Bush died in 1853, leaving a will which was probated after his death. He appointed Selina Bush, his wife, executrix, and Seaborn J. Dubose executor of his will. Mrs. Bush entered upon the execution of the trust, but whether Dubose acted is not shown. At his death Mr. Bush owned lands, and probably personal estate. He left three children. After providing for the payment of debts, testator dirécted that his estate, real and personal, remain in the hands of his wife “ to rear and educate his three children, and to remain hers during her life-time or widowhood.” In case of the marriage of Mrs. Bush, the will directed testator’s estate, real and personal, to be sold, and [the proceeds] “equally divided between her and the three children.” No other clause of the will need be noticed here. In 1862 Mrs. Bush intermarried with Glover, who, by virtue of his marriage, became executor with her of the will. Soon afterwards they petitioned for, and obtained an order of the probate court, to sell the lands for division. They sold, and the executrix, Mrs. Glover, became the purchaser. She gave no notes, and did not pay the purchase-money. Nevertheless, they reported the sale to the probate court, and it was confirmed. No report of payment of the purchase-money, and no order to make title were ever made, and no conveyance of the lands to Mrs. Glover was ever executed. In 1873 Mrs. Glover, by her individual deed, in which her husband did not join, conveyed the lands to her three children by Bush, her former husband. Subsequently, and before this suit was brought, the three children sold their several interests in the lands in con-trovery, and Watson, the defendant in this suit, became the owner thereof. In 1873, Glover and wife resigned the execu509 torship of Bush’s will, their resignation was accepted, but they have made no final settlement of their administration. How their executorial accounts stand, is not shown. In 1882, and at the instance of Glover, Martin was appointed administrator de bonis non of the estate of Bush cmn testatamento annexo, and immediately instituted this statutory real action for the recovery of the lands. The court gave the general charge in favor of the plaintiff, at his written request,, which was excepted to ; and there were verdict and judgment for the plaintiff. It was proven and admitted that Bush’s estate owed no debts, when Martin was appointed administrator. We can not assent to the argument of counsel, that the power of sale expressed in Mr. Bush’s will, is a mere personal trust, to be executed only by the executors. It is a general power, unattended by any discretionary power, or evidences of personal confidence. Such power, under our statute, may be exercised by the administrator de bonis non. —Code of 1876, § 2218; Coleman v. Camp, 36 Ala. 159; Ex parte Dickson, 64 Ala. 188; Mitchell v. Spence, 62 Ala. 450. It is very clear that the title to the lands in controversy has not been devested out of the estate of Mr. Bush, by any proceedings shown in this record. It requires a conveyance’to devest title, and none was made in this case. If there had been a necessity for an order of sale (there was not), then, to devest title, there must have been, not only a sale, reported and confirmed, but report that the purchase-money was paid, order to make title, and title actually made.—Keichum v. Creagh, 53 Ala. 224; Wallace v. Nichols, 56 Ala. 321; McCully v. Chapman, 58 Ala. 325; Calhoun v. Fletcher, 63 Ala. 574. There is, however, another defect in the defense offered, which renders it entirely unavailing at law. Under the will, as affected by the marriage of Mrs. Bush, the children did not take the land, as land. It was directed to be sold, and the proceeds divided equally between the widow and her three children. This converted the realty into personalty, and required the services of a personal representative for its administration.—Hemphill v. Moody, 64 Ala. 468. We need not and do not say, that the legatees under Mr. Bush’s will, all being adults, could not have agreed together, and .divided the lands and other property, without a sale. They are not shown to have done so. The deed of Mrs. Glover, not joined in by her husband, is a nullity. If Watson is the real owner of the shares of the several children, then, on proper application and showing, he should be allowed to take their places, and to receive their legacies. And if Mrs. Glover is indebted to the estate, or if the estate is [510] indebted to her, this should be considered in settlement and distribution. We say distribution ; for the estate must be distributed entirely as personalty. If, however, Mrs. Glover has already received her full share of the estate, then there is no occasion for a sale or division of the lands, as "Watson appears to own all the remaining interests. But a court of law can not determine these questions.—Owens v. Childs, 58 Ala. 113. The judgment of the circuit court must be affirmed.