Pratt Land & Improvement Co. v. Robertson

DOWDELL, J. -The bill in this case is filed for the purpose of removing the administration of the estate of Reuben Robertson, deceased, from the probate into the chancery court, and among other objects, for the sale of certain described land for distribution in accordance with the terms of the last will and testament of the said Reuben Robertson, deceased. The bill as amended, among other things, avers that there are minor heirs interested; “that a doubt has arisen as to the construction of said will as to the power of the executor to sell under the will, and the interpretation of said will is necessary in order to enable complainants to enjoy their rights thereunder. They aver that the doubts as to the true construction of said will will prevent the sale of the property ordered to be sold or provided by the terms of the will to be sold, at a fair price, and that unless by a decree of this court the true construction and interpretation of said will is established, said property when sold will probably be sacrificed.” Appellants do not deny, but admit that the bill contains equity. The only question raised and insisted on in [589] argument by counsel for appellants is whether the bill is multifarious, and to this question we will confine our consideration here. The contention of appellants is, that by the bill of Reuben Robertson, deceased, there was no devise of the land to the executor, but only a devise of a general power to sell, and, therefore, the title to the land devolved on the heirs, and the appellants having acquired by purchase the interest and title of one or more of the heirs, are tenants in common with the remaining heirs. And that as such tenants in common they have no interest in the administration of the estate of said Reuben Robertson, which is sought by the bill, or in other words, that the bill contains distinct subject matter, viz.: the administration of the estate and distribution of assets among distributees, and the sale of the particular land for distribution, and that in the former appellants have no interest, and in the latter the heirs who have parted with their title to appellants have no interest. By the terms of the will, the contingency named having arisen, the power to sell is general and absolute. The language of the will is, after the happening of the contingency, “then my property is to be sold and the proceeds thereof is to be equally divided among all my lawful heirs giving an equal share to Martha and M. M. Robertson (if living), as well as all the balance.” The next and last item of the will appoints J. T. Robertson executor. The power conferred by the will on the executor to sell is too clear to admit of question. Blount et al. v. Moore, 54 Ala. 360; McCollum v. McCollum, Exr., 33 Ala. 711; Winston v. Jones, et al., 6 Ala. 550. Whatever title descended to the heirs of Reuben Robertson, deceased, by failure of a specific devise of the land, descended subject to the power created by the will. The purchaser from the heir could acquire no greater right or interest than the heir had. The Avill requires the land to be sold and the proceeds to be distributed, and when the time arrives for the execution of the power, in equity the land is regarded as proceeds in the hands of the donee of the power.—Wat [590] son v. Martin, 75 Ala. 506; Hemphill v. Moody, 64 Ala. 468. . ' The heir could not by a sale and conveyance of his interest and title in the land defeat the power created by the will. The purchaser from the heir as to the execu-. tion of this power stood in the shoes of the heir. The appellants, therefore, were properly made parties to the bill, and the bill was not thereby rendered multifarious. The demurrer for multifariousness was properly overruled, and the decree will be affirmed. Affirmed.