Heiseman v. Lowenstein

Hart J. (after stating the facts). In the case of Williamson v. Grider, 97 Ark. 588, the court said: “Where a trust is created by a will, a court of equity has jurisdiction to construe the will. The power is incident to the jurisdiction which courts of chancery have over trusts. And this upon the theory that ‘as chancery will compel the performance of trusts, so it will assist trustees and protect them in the due performance'of the trusts, whenever they seek the aid and discretion of the court as to its establishment, management, and execution. ’ ’ So, also, in the ease of Davis v. Whittaker, 38 Ark. 435, the court said: “Such suits are within the ordinary jurisdiction of courts of quity. They are commonly entertained as the suits of the trustees or executors seeking the aid, advice, and protection of the court in the execution of the trust,” etc. In regard to the construction of wills, in the case of Parker v. Wilson, 98 Ark. 553, the court said: “The power of one, legally competent to make a will, to dispose of his property as he sees fit, subject to the restrictions provided by the statutes, is a legal incident to ownership. Ih construing the provisions of a will, the intention of the maker is first to be ascertained, and, when not at variance with recognized rules of law, must govern. The intention of the testator must be gathered from all parts of the will, and such construction be given as best comports with the purposes and objects of the testator, and as will least conflict.” See, also, Gregory v. Welch, 90 Ark. 152. Tested by these principles, we think the will in question created a trust. The testator was a business man of long experience and knew the extent of his indebtedness and the amount and kind of property held by him. He knew that he had very little cash on hand, and that his estate consisted for the most part of real property, and the balance of personal property of speculative value. After the payment of his debts, he directed that legacies should be paid by his executors to certain of his relatives; that these legacies should be paid in cash, and the amount thereof should be deposited in trust companies to be paid to the legatees in the manner directed by the will. The seventeenth clause of his will provided that his excutors “shall close up the estate committed to their charge as speedily as possible so that the creditors of my estate, if there are any, and my legatees may promptly receive what is due to them.” The testator also recognized that Ms whole estate might be insufficient for the purpose of paying Ms debts and the specific legacies provided in the will; for the last clause of Ms will provides: “Should my estate be insufficient in amount to pay all of the legacies above mentioned after payment of expenses, debts, and executors and costs, the legacies shall be proportionately reduced. ’ ’ TMs brings us to the question of whether the executors were given the power in the will to sell, mortgage or lease the property. It is .well settled that an executor has no power to sell the land of his testator unless directed to do so by the will either expressly or by necessary implication. In tMs case the will does not give the executors express authority to sell the real estate. It is equally well settled that, because the testator has a right to dispose of Ms real estate as he sees fit, if he directs that to be done by Ms executors, which necessarily implies that the estate is fir%t to be sold, a power is given by implication to the executors to make such sale and execute the requisite deeds of conveyance. Going v. Emery, 16 Pick. (Mass.) 107; Lippincott’s Executors v. Lippincott, 19 N. J. Eq. 121. In the latter case the court held: “The appointment of one as executor of a will that directs lands to be sold, does not, of itself, confer on him the power to sell. But if the executor is directed by the will, or bound by law, to see to the application of the proceeds of the sale, or if the proceeds, in the disposition of them, are mixed up and blended with the personalty— wMch it is the duty of the executor to dispose of and pay over — then a power of sale is conferred on the executor by implication.” See, also, May et al. v. Brewster et al., 73 N. E. (Mass.) 546. In 2 Perry on Trusts (4 ed.), § 776, the author says: “No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon the trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee.” Tested by these legal principles, we think the will conferred upon the executors the power to sell the lands of the testator. As we have already seen, the bulk of his estate consisted of real property, and several legacies were left which the testator directed to be paid in cash. His directions in this respect could not be complied with unless the executors had the power to sell the real estate left by him. He directed his executors to close up the estate committed to their charge as speedily as possible, so that his creditors might be promptly paid and the legatees promptly receive what is due them. We now come to the question as to whether a power of sale includes a power to mortgage. There is some conflict in the authorities on this question, but we believe that the better reasoning, if not the weight of authority, is to the effect that a mere power of sale does not include a power to mortgage. Stokes v. Payne, 58 Miss. 614; Bloomer v. Waldron, 3 Hill (N. Y.) 361; Perry v. Laible, 31 N. J. Eq. 566; Willis v. Smith, 66 Tex. 31; Hubbard v. German Congregation, 34 Ia. 34; Cumming v. Williamson, 1 Sanford’s Chancery (N. Y.) 17. This results from the fact that a mortgage is regarded as a security for debt rather than a conditional estate, and hence its execution is regarded as creating an encumbrance rather than as transferring the title. That is to say, a mortgage is treated as a mere security for a debt, and the legal estate can only be used for the purpose of enforcing the payment of the debt secured. The cardinal principle that governs in the construction of powers is to effectuate the intention of the donor; but we can not gather from the terms of the will any intention on the part of the testator looking to a mortgage of his estate. The will does not in express terms authorize the executors either to borrow money or to mortgage the real estate. By the terms of the will, the executors were directed to close up the estate as speedily as possible, and to pay the debts of the testator and the legacies named in the will promptly. The testator anticipated that the whole estate might be neces,sary to pay all the legacies and to pay his debts. Therefore, in the last clause of his will he .provided that if his estate was not sufficient to pay all the legacies after the payment of his debts, the legacies should be proportionately reduced. All this precludes the supposition that a mortgage was ever within the intention of the testator. See, Williamson v. Grider, supra. And, as we have already seen, a power of sale does not include the power to mortgage except in those States where a mortgage is characterized as a conditional sale instead of being regarded as a security for a debt. We do not deem it necessary to decide whether or not the executors have the power to make a lease for a long term of years as it does not seem to us that it will be necessary for the executors to do this. It appears from the allegations of the complaint that before his death,' Stiewel executed a lease for the term of thirty years to the Bankers Trust Company on the property at the corner of Second and Main streets in the city of Little Bock, and, of course, any sale of that property by the executors will be made subject to the rights of the lessee under the lease. It may be said, however, that the will places the control and management of the estate in the hands of the executors, and they will have power to make leases for such length of time as may be necessary until they exercise the authority to sell and dispose of the land. It follows that the decree will be reversed and the cause remanded with directions to the chancellor to enter a decree in accordance with this opinion. Kirby, J., did not participate.