Solomon v. Wixon

Park, J. On the trial of this case in the court below, various objections were made by the defendant to the validity of a certain deed offered in evidence by the plaintiff, for the purpose of proving title in himself to the premises in dispute. It appears that in the last will and testament of one Selah Gage, deceased, his two sons, Thomas and Levi, were named as executors, with power to sell certain real and personal estate, to pay certain legacies given in the will; and the deed in question was executed for the purpose by Levi alone, as sole executor of the will. Hence arises the controversy in the ease. The first question is, whether the records of the court of probate furnish sufficient evidence to justify that court in finding that Thomas Gage refused to accept his appointment as executor. It was decided by this court in the case of Ayres v. Weed, 16 Conn., 291, that while it was the usual course for those declining to act as executors or administrators, to signify such refusal by a written communication to the judge of probate to that effect, still, in cases where this is not done, the fact of refusal may be inferred from circumstances or proved by any proper evidence; and such circumstances or evidence appearing on the records of the court, it is sufficient. The records of the court of probate show that Thomas Gage neglected to appear before that court for the purpose of becoming qualified to act as executor; but the claim is, that it does not appear from those records that he had at any time been apprised of the fact of his appointment as executor, and therefore his refusal to accept the trust can not be inferred from the fact of his non-appearance before that court. But the records show that Thomas Gage was a son [527] of Selah Gage, and was likewise a devisee and legatee in the will of his father; and when we take into consideration that a period of time necessarily must have elapsed between the death of the father and the probate of the will, it is difficult to believe that the son, under such circumstances, was ignorant of the contents of the father’s will. Besides, subsequent events clearly prove that Thomas Gage refused to accept the trust; for the records in question further show, that during all the period of time allowed by law for the probate of wills, which had intervened before the giving of the deed in question, Thomas Gage never appeared before that court for the purpose of becoming qualified to act as executor ; and it can hardly be said that, during all this period of time, and that too when the estate was in course of settlement, he remained ignorant of his appointment as executor. These facts appearing on the records of the court of probate, we deem them sufficient. It is claimed in the second place that the will of Selah Gage empowered Thomas and Levi, merely as individuals, to sell, and consequently an attempted sale by one, without the co-operation of the other, was wholly nugatory. We do not so understand the will. The expression is, “ I do hereby empower my executors to sell both real and personal estate, as they shall think best, to pay the legacies, and to give a good and lawful conveyance;” and in a subsequent and distinct clause in the will he appoints his executors. We think it is evident from the language used, that the testator not only expected his property to be sold for the purposes named, but that the language is equivalent to a direction to his executors to sell, but the mode and extent of the sale he leaves to their discretion. The ease, therefore, clearly comes within the provisions of the statute upon the subject; and consequently, when Thomas refused to act as executor, the whole duty devolved upon Levi, who had accepted the trust. Rev. Stat., tit. 29, § 17, Again, it is claimed that the power to sell must be strictly pursued, and that the deed in question is defective because the will empowers the executors to sell, whereas it is stated [528] in the deed, “ I, Levi Gage, executor, by virtue of power and authority given to me, &c.” We see no objection to the deed in this respect. Without stopping to inquire how the common law regards the question, we are entirely satisfied that the statute already alluded to disposes of this objection. (See the statute above referred to.) The records of the court of probate show that Levi Gage was the sole acting executor at the time the deed was given, and in view of the statute he might well use'the language of the deed in describing his authority. Such was its legal effect, under the circumstances. He does not pretend to quote the language of the will, but he merely describes his authority derived from the will in his own language. It was not necessary that he should state the facts whereby he became, in law, the sole acting executor. They are a matter of record in the proper place, and that is sufficient. Again, it is claimed that the deed is defective, because it does not show that the legacies were due—that the sale of the property was necessary for the payment of legacies—that the sale was made for the purpose of payment—and what amount remained unsatisfied ; and the case of Lockwood v. Sturdevant, 6 Conn., 373, is relied upon in support of this claim. It might well be questioned whether the case referred to supports the doctrine contended for by the defendant. The principle decided’in that ease is, that the authority, by virtue of which an administrator is empowered to sell and convey estate, must appear on the deed of conveyance, and with such certainty that the act done may be seen to be warranted by the power conferred. The authority to sell in that case came from the court of probate, and in pursuance of an order granted to that effect; and the deed was held void because it did not detail the reasons on which the court of probate proceeded in granting the order. In this case the authority to sell comes from the will of Selah Gage, and the executor in the deed of conveyance refers with particularity to the will, and sets forth at length the authority there conferred. Rut the case of Lockwood v. Sturdevant was substantially overruled by the case of Watson v. Watson, 10 [529] Conn., 77, and the recent case of Howard v. Lee, 25 Conn., 1, and is no longer authority. The will of Belah Gage leaves it to his executors to decide in what manner and to what extent they will sell the real and personal estate to pay the legacies given in the will, and the mere fact that a sale was made shows that it was deemed necessary, and to the extent of the sale. It is true the executor does not state in direct terms that he makes the sale for the purpose of paying the legacies, but he does what may be regarded as equivalent—he recites his authority, and then proceeds to make the conveyance ; and so long as it is not denied that the sale was in fact made for the purpose of paying the legacies, we deem it sufficient. We have now answered the various objections made by the defendant to the validity of the deed in question, and the conclusion is, that the objections are without foundation, and that the deed should have been received in evidence by the court, for the purpose for which it was offered by the plaintiff. In this state of things the defendant insists that the plaintiff, on the trial in the court below, received the full benefit of the deed upon the questions at issue, and therefore a new trial of the case should not be granted, because substantial justice has been done. He claims that the question in the case was in regard to the possession of the premises by the plaintiff, and the deed being received in evidence by the court so far as it might explain the character of what were claimed to be acts of possession by him, he therefore received no harm from the ruling of the court. But the finding of facts shows that both the parties claimed title and possession of the premises, and it is easy to see that the title might have an important bearing on the question of possession, beyond the mere purpose for which the court received the evidence. For these reasons we advise a new trial. In this opinion the other judges concurred. New trial advised.