Harmon v. Smith

NelsoN, J., (after stating the facts as above.') The defendants claim that upon a proper construction of the will the power of sale was not limited to the life-time of Mrs. Harmon, but could be exercised by Kinsman at any time prior to a final distribution of the property to Mrs. Harmon during her life, or afterwards to those succeeding to her rights. It is also claimed that the real estate as well as the personalty was charged with the payment of debts, and when the lots were sold Smith was not bound to inquire whether there -were debts which justified a sale of real estate, or see to the disposition of the proceeds. It is also urged that the' complainants, and each of them, are estopped from bringing this suit for the reason that the sale has been ratified by the acceptance of part of the purchase monejr. The facts are substantially undisputed, and the cause has.been elaborately and ably argued by counsel. 1. The sale cannot be upheld on the theory that the debts were a charge upon the real estate. The debts are not directed to be paid out of any particular fund. The personalty, as appears from the testimony, was ample to discharge all debts and pay for monuments, and it was so applied. The testator manifestly intended that the executor should pay the debts from the personal estate, in the exercise of his duty, as the law required. There was no trust created by the will, or expressed therein, by virtue'of which the executor and trustee could accomplish this object. A mere general direction to pay debts is not a charge upon the lands for that purpose, and furnishes no evidence of an intention to charge the real estate. The latest authority found (Balls v. Dampman, 16 Atl. Rep. 16, Md. Ct. App. Nov. 22, 1888, following White v. Kauffman, 66 Md. 92, 5 Atl. Rep. 865) so decides, and holds that such declaration “simply provides what the law has determined shall be done, [485] with or without such a clause in the will.” See Lupton v. Lupton, 2 Johns. Ch. 614: In re City of Rochester, 110 N. Y. 159, 17 N. E. Rep. 740; Will. Eq. Jur. 488. 2. The only trust in the will is to sell and pay over the proceeds for the use and benefit of Mrs. Harmon, the sole legatee, and this is an express trust, recognized by the law of Minnesota, Gen. St. Minn. § 11, p. 553, in force when the will became operative. After directing the payment of debts, and requesting his executor to provide suitable monuments, the testator “gives and bequeaths” all the residue of his real and personal estate to his executor and trustee, “with full power to sell and convey any or all of said estate, and convert the Same into money,” in trust for the use and benefit of his sister, Mrs, Harmon, who is made sole legatee, and directs him to pay over the avails to her. By these provisions it is clear that the testator intended that his whoie real and personal estate should become united in one common fund for the sole purpose of distribution to the sole object of his bounty, Mrs. Harmon. The testator intended to and did exhaust the entire produce of the sale of his realty and personalty and give it to her. The whole property was disposed of by the will, and he died intestate as to no portion of his estate. There was a complete appropriation of his entire estate for the benefit of his sister, after the debts were paid and the monuments pro-' vided; and lie gives a reasoa for it in his will. The testator created no other trust, and did not look beyond his sister for an object of his bounty. It is true, he conferred upon his executor and trustee authority to fulfill his contracts, release mortgages, compromise and adjust claims that may be due, give deeds of conveyance for lands, and give any ac-quittances necessary in the settlement of his estate; but ail these duties and powers not embraced in the trust, to sell for the benefit of Mrs. Harmon, the law conferred upon Kinsman as executor, some of them to be done by order of court, obtained upon application, and others without it. 1 concede that for purposes of the trust the real estate may be considered as personalty impressed by the doctrine of equitable conversion, but such conversion is admitted only for the accomplishment of equitable results. Kinsman only took the legal title subject to the trust, and on the death of Mrs. Harmon the estate, real and personal, vested in her representatives. The trust ceased to be active, and was then determined, and the estate belonged to the complainants; for the doctrine is well settled that the trustee only takes that quantity of interest which the purposes of the trust require and the will permits, and its duration continues to that extent only. 4 Kent. Comm. 310, and note; I Perry, Trusts, § 312. The legal estate remained in the executor and trustee so long as the execution of the trust required it and no longer. Nicoll v. Walworth, 4 Denio, 388; Young v. Bradley, 101 U. S. 787. The heirs of Swift would take under no circumstances, for the proceeds of the entire estate were disposed of by the will. No ulterior purpose for maintaining the trust is evinced, requiring that the intent, of the testator, to change the realty into personalty should be carried out. No sale was authorized except to convert the estate into money for the use and [486] benefit of Mrs. Harmon. Kinsman was not the trustee of the representatives of Mrs. Harmon and when he undertook to sell after her death the sale was utterly void. 3. It is claimed that the sale to Smith was ratified by the representatives of Mrs. Harmon, and that by their conduct they are estopped to assert any right to the land. The doctrine of estoppel by conduct does not apply to minors, unless such conduct was intentional and fraudulent. Bisp. Eq. §§ 282, 293: Big. Estop. (1st Ed.) 486. The acts of Kinsman in dealing with, the property after the death of Mrs. Harmon, known to Mr. Harmon, the guardian, and the receipt of money derived from the sale by two of the heirs after they became of age, are relied upon, but they do not work an estoppel. Kinsman made the sale without informing the complainants except the father, Mr. Harmon, who refused to sign a deed as guardian or relinquish his curtesy. The paper purporting to be a release of lots in Ramse}^ county, Minn., signed by Harmon, guardian, and Cornelia and Olive Harmon, and the vouchers for money, are not sufficient evidence of the children’s intention to ratify the sale. They at least must have been informed of every material fact, and been advised that the sale was void without confirmation by them, before a ratification can be established, if at all. Story, Ag. §§ 239, 243, and note: Kerr, Fraud & M. 296; 2 Pom. Eq. Jur. §§ 964, 965; Owings v. Hull, 9 Pet. 607-628. This was not done. Kinsman at no time informed the children of the sale, and it was only after his death they discovered it. He undertook to dispose of the property, claiming the right so to do as executor and trustee under the will of Swift. When the vouchers were signed by Cornelia and Olive he stated that he wished to get rid of the management of the Swift estate, and procured their signatures to enable a final settlement to be obtained, and nothing was said about a. desire to have the sale ratified. Smith knew that the sale was made by Kinsman, acting as executor and trustee, in the exercise of authority claimed under the will of Swift. It is so recited in the deed. He rvas put upon inquiry to ascertain whether the power existed to sell, and he must ascertain at his peril whether Kinsman had the estate which he professed to convey. 1 Perry, Trusts, § 226; 2 Perry, Trusts, § 814. Whatever Mr. Harmon may have done claiming to act as guardian, cannot bind the children, and estop them from asserting a right to real estate illegally sold. The conveyance to Smith being void, the defendants Twohy and Dow, claiming title through him, have no standing in court, and the complainants are entitled to a decree, and it is so ordered.