Columbus Insurance & Banking Co. v. Humphries

Campbell, J., delivered the opinion of the court. The bill is multifarious. It is too sweeping and blends too many diverse matters to withstand the objection of multifariousness. The account of the executor; the foreclosure of the trust-deed he gave to secure his indebtedness to the estate; the partnership matters of the testator and the executor with the Hudsons; the deed claimed by W. F. Humphries to have been made to him [276] by A. S. Humphries; the claim of Mrs. E. D. Humphries, wife of W. F. Humphries, to an undivided two-thirds interest in certain real estate, and uniting purchasers of real and personal estate from the sole acting executor, are improperly blending distinct and unconnected matters. These are given rather for illustration than enumeration of the unconnected matters of the bill. We know there can hardly be said to be a rule on the subject of multifariousness, but no case maintains this bill in its discursive range over the affairs of the testator and those who dealt with him in his lifetime, and his executor and all who had transactions with him, whether authorized or not. In Gaines v. Chew, 2 How. (U. S.) 619, the bill was declared to be subject to objection for multifariousness in respect to Mrs. Barnes and husband, and seeking an account of the executors, and the case was so certified to the court below (from which it came by division of opinion) for expurgation in these particulars. If it had been before the court on demurrer overruled, the decree would have been reversed. The bill was held to be maintainable in its main features because the gravamen of fraud or wrong in the sales complained of was the same, and applied equally to all the defendants. Section 1886, of the code applies to one form of multifariousness, as formerly existing, but in no way affects the question as to disconnected parties or subjects. The rule on that subject remains, and if ever to be enforced, should be in this case. The sole acting executor, W. F. Humphries, possessed all the power conferred^ by the will or the law as to the personal estate of his testator. Dealing with the personal estate belonged to the office. It is not a question of power coupled with an interest and survivorship of such power. The legal title was in the executor, and to be dealt with as the will or the law directs. Our statute, § 1984 of the Code of 1880, taken from former codes, is founded on the well-known distinction between real and personal estate. It provides for the exercise of the power of sale of land directed by the will to be sold by the person charged with the execution of the will. This provision as to land, while there is none as to person [277] alty, sprung from necessity. Without it land could not be sold in certain cases by a single executor or an administrator with the will annexed, but as personalty belonged to the executor or administrator with the will annexed, as owner he can sell, if empowered by the will or the law. It is a function of the office, and exercisable by its incumbent. It matters not whether Murdock’s surrender of his trust was effective or not. The acting executor was clothed with all the powers of the executorship as to the personal estate of his testator. According to the bill, Weaver’s title to the land he purchased is unassailable. W. F. Humphries, as executor, had the right to foreclose the trust-deed for the debt due his testator, and having purchased the land and had a conveyance to himself, he had the' legal title and could and did convey it to Weaver for a consideration paid. There is no collusion charged against Weaver, and the fact that the executor appropriated the money received from Weaver for the land to his own use, after its receipt, in no manner involves the title of Weaver, who had no concern with the proper application of the money. That the land was conveyed to Humphries as executor did not make any difference. The title was in him, and the words “ as executor ” merely described the character of the person. They indicated that he had the title in trust, but the fact remains that he had the title and could convey it. While W. F. Humphries as executor had the power to sell the personal estate, as conferred by the will, prima fade, he did not possess the power to exchange one sort of property for another. A power to sell does not include the power to exchange. An exchange may be a step, and a proper and judicious one, in effecting a sale. If it appeared that the executor exchanged shares of bank stock, not readily salable, for bonds which were convertible into money, in the due execution of his trust, the fact that an exchange was one step in the process of conversion of assets into money would not cause a condemnation of the transaction by which an allowable result was reached. Since the will does not confer on the executor power to exchange, the transaction he had with Mrs. McCabe requires explanation and vindication, and therefore the [278] allegations of the bill are sufficient to call for an answer furnishing the required vindication. Reversed and remanded, to be proceeded with in the court below in aoeordanee with this opinion.