Nicoll v. Scott

Mr. Justice Sheldon delivered the opinion of the Court: It is claimed that title to the land is in John J. Scott, under the deed made by him as administrator de bonis non, with the will annexed, of Alexander Scott, deceased, to Sarah Huber. If, as such administrator, he had the power to make sale and conveyance of the land, the claim is sustained. But this court decided, in Hall v. Irwin et al. 2 Gilm. 176, that such an administrator with the will annexed had no power, without the aid of a court, to sell lands devised to an executor to be sold, or directed to be sold by an executor. In avoidance of the force of this' decision, appellees’ counsel urges that there has since been a change in the statute relative to the power of an administrator with the will annexed, which should cause a contrary decision under the present statute. The present statute reads: “When a sole or surviving executor or administrator dies, without having fully administered the estate, if there is personal property not administered, or are debts due from the estate, or is anything’remaining to be performed in the execution of the will, the county court shall grant 'letters of administration with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the estate of the deceased not already administered.” Rev. Stat. 1874, p. 111, sec. 37. The change from the previous statute which is thus relied upon, is in the addition of the words above which are italicised. We perceive nothing in such alteration of the statute which calls for any, difference of decision from the former. There was no case here, under the statute, for the appointment of such an administrator. No executor or executrix had died “without having fully administered the estate.” There was no occasion for a “person to administer the estate of the deceased not already administered.” The estate of the testator had been settled finally by the executrix twenty years before, so far as she had power under the will. The ground of the decision in Hall v. Irwin et al. was, that executors may act in a double capacity : as executors, by virtue of their office, and as agents or trustees under a warrant of attorney, — in Avhich latter capacity, as in the case of a power given to sell land, if they act, the trust imposed upon them is of a special and confidential character, and can not be delegated, and that it is only the powers and duties of the executor, as such, resulting from the nature of his office, Avhich devolve upon an administrator Avith the will annexed, and not an authority as trustee, — a power to sell land,— Avhich is a personal trust or confidence reposed in the executor by the testator. We think the above decision applies equally under the statute as it now stands, as it did before; that the Avords in the present statute, “anything remaining to be performed in the execution of the Avill,” mean only something to be performed as executor, and belonging to the office proper of executor, and do not extend to anything to be done as agent or trustee, under a pOAver given to sell land; and that the sale and conveyance by the administrator Avith the will annexed were invalid, and no title was derived thereunder. But the more difficult and important question in the case arises upon the construction of the will of Alexander Scott. The defendants maintain, and so the circuit court held, that the estate in remainder passed, under the will, to such only of the devisees named in it who survived the death of the life tenant, Sarah Scott. Under this construction defendants have title to all the land. Complainant contends that the will created a life estate in Sarah Scott, with a remainder over in fee to the devisees named in the will, which vested in the devisees at once upon the death of the testator. Upon this construction there is an outstanding title, notin the defendants, to of the-land. Looking solely to the words in the last clause of the 4th paragraph of the will, “and it is my will the said farm, and improvements thereon, be sold after the decease of my wife, Sarah, so that the proceeds shall be equally divided among the survivors named in said will,” there is ground for defendants’ construction, under the cases of Ridgeway v. Underwood, 67 Ill. 419, and Blatchford et al. v. Newberry et al. ante, 11, and the rule that where the form of the gift is, after the expiration of a prior interest, to distribute a fund to “ survivors,” the word “ survivors ” refers to the period of distribution. But here, in the immediately next preceding clause, there is a direct and absolute gift of the lands to the devisees by name, tobe equally divided among them at the decease of the testator’s wife, — that is, to be equally held and enjoyed by them then. It makes a difference in construing survivorship, as referring to the time of distribution or not, whether all that there is of the gift is in the direction to pay or distribute, or whether there is an antecedent gift to devisees named, the enjoyment of which may be considered as postponed, survivorship being more readily referred to the period of division in the former case than in the latter. See case last cited. After the giving, here, of the lands absolutely to the devisees named in the will, to be equally divided among them at the wife’s decease, there follows, then, in the next clause, an expression of the will of the testator, that the lands so before given be sold after the wife’s decease, “ so that the proceeds shall be equally divided among the survivors named.in said will.” This would seem to imply supposition on the part of the testator that there was necessity for the sale and division of the proceeds, in order to the making of equal division. But as the lands themselves might be equally held and enjoyed "without selling them and dividing the proceeds, it would seem that the provision for selling, “ so that the proceeds shall be equally divided,” should be subordinated to the antecedent gift of the lands themselves to the devisees named in the will. This provision, in connection with the preceding clause, may, perhaps not improperly, be regarded as amounting but to a recommendation to convert the land into money and divide the proceeds, as held in the somewhat similar case of Hurt v. McCartney, 18 Ill. 132. The cases of Balter v. Copenbarger, 15 Ill. 103, and Ridgeway v. Underwood, supra, recognize the doctrine that where there is a devise made of money to be produced by the sale of lands, by the election of all the devisees they may take the land itself instead of the money. In Gill v. Grand Tower Manufacturing Co. 92 Ill. 249, it was held, that a direction in a will that a sale should be made of property, there being no trust created, but a mere naked power given to sell, and nothing done thereunder, would not prevent the property from descending as intestate estate. A further provision bearing upon intention is the last clause in the fourth paragraph, as follows: “And it is further my will that my son William J. Scott receive $100 out of my son Jacob Scott’s share, for money advanced to my son Jacob.” This is all absolute and unqualified that William J. should have this $100, and that he should have it out of Jacob’s share, indicating that Jacob’s share was an absolute and certain one. But if the devise was only to those surviving the wife’s decease or the period of the distribution of the money from the sale of the land, then Jacob would not have had any share absolutely aiid certainly, but it would have depended upon the contingency of such survival whether he had any share at all; and as he did die before the widow, he did not, according to defendants’ construction that only her survivors took, have any share, though this provision of the will certainly contemplated that he was to have a share out of which William J. should be paid $100. It is the intention which is to be regarded and which is to control; and to ascertain this, no single provision is to be construed by itself, but in connection with the other portions of the will. Construing, then, these several provisions of the fourth paragraph, which have been remarked upon, together, we must come to the conclusion that the devise here of the lands was a life estate to the widow, with a remainder in fee to the other devisees named in the will, and that it was a remainder which vested in the devisees at once upon the death of the testator. Whatever of force is to be given to the word “survivors,” used, it must be referable, we think, to the time of the testator’s death, in view of the intent to that effect manifested by the two other provisions of the will which have been commented upon. The mere fact that one estate under a will is provided to take effect after the termination of an intervening one, will not have the effect to prevent both estates becoming vested at the moment of the decease of the testator, — the one in possession, the other in prospect or remainder. The question of vesting or remaining contingent depends upon whether the condition of the intervening estate determining, and the estate over taking effect, is one that must happen sometime, or may never happen. If the former, then the second estate in remainder will always be regarded as vested. 2 Redfield on Wills, 215, 217. The remainder here was to take effect upon the death of Sarah Scott, — an event that must have happened. It was, therefore, not a contingent one, but vested in the devisees named in the will, and upon the death of either of them passed to their respective heirs, and upon a conveyance by any one, to his grantee. The stipulation in the case, that Hannah Rittenhouse, Sarah Huber, William J. Scott and John J. Scott, who are the only devisees named in the will who survived the life tenant, have had the exclusive and peaceable possession of the land, claiming and exercising acts of ownership since the death of the life tenant, May 21, 1872, that they have paid the-taxes thereon regularly every year up to 1880, and that no other person has claimed the premises adversely, does not show a title by limitation. It does not show an ouster of the other tenants in common. There being a want of title to of the land, we think the proper decree would have been a rescission of the contract of sale, the refunding of what has been paid, decreeing properly with respect to rents and profits and any improvements made, unless complainant should elect to accept a warranty deed upon payment of the note given. The decree of the circuit court is reversed, and the cause remanded for further proceedings in conformity with this opinion. Decree reversed. Mr. Justice Scott took no part in the consideration of this case.