Chighizola v. Le Baron , 21 Ala. 406 ( 1852 )

GOLDTHWAITE, J.

— ’The testator, by his will, devised certain lands to the children of a deceased son. The other clauses of the will are as follows :

“I give and bequeath to my wife Clara one-fourth of the income of all the rest of my real estate during her natural life, and the entire use of my present residence, on Conti street, and one-fourth in foe simple of all my personal estate for her use.”

“I give and bequeath to my children Anna, Louisa, and son John Baptiste, the balance of my real estate not already bequeathed, and also all my personal estate, to be distributed ■when required, at mature age or majority, in equal parts.”

The wife is appointed testamentary guardian of the children, and the defendant in error, executor.

The first question presented in the argument, was in relation to the right of the executor to the possession of the real estate devised to the children. By the common law, the lands of the testator not devised descend to the heir, and if devised, they pass to the devisee; the heir in the one case, and the devisee in the other, being entitled to the possession. To disinherit the heir at law, plain words of devise or necessary implication were required, and his title could not be defeated, unless there was a disposition of the subject, to some person capable of taking. 2 Fonb. 51; Habergham v. Vincent, 2 Ves. 224; Pickering v. Lord Stamford, 3 Ves. 493. So also in relation to the executor; at the common law, he was not entitled to the possession of the lands without a devise to him, or unless his right to hold was clearly deducible from the will. In this case there is no devise to the executor; but it is insisted that his right to the possession of the lands, results by necessary implication from the fact, that, by the terms of the will, the distribution of the estate to the children is postponed until a future period; and that, as the law casts upon the executor the duty of distribution, it gives him by implication the control and possession of the estate for that purpose. If the position insisted on was correct, it would follow, that where the testator directed his executor to sell his land at a future day, he would be entitled to hold until the period fixed for the sale; whereas the rule is well settled, that such a direction amounts to a bare authority only, without an interest, and that in the mean time the heir is entitled to the possession. Co. Litt. 113 a, 236 b; Powell on Devises, 193; Bergen v. Bennett, 1 Caines’ Cas. 15, 16. So in the' present case, the authority to make distribution confers upon the executor a naked power merely, uncoupled with any interest, and, in the absence of a devise to him, or words of implication, gives him no right to the possession or control of the lands. We regard, however, the word “distributed,” as used by the testator, intended simply to postpone the division of the estate to the time fixed by the will, and until that time arrives, and the real estate is divided, the devisees referred to take as tenants in common.

We have considered the question presented, upon the analogies of the common law, and without any reference to the statutes of this State, authorizing the executor or administrator to sell or rent the lands of the decedent — the rule being-settled, that these statutes do not, of themselves, intercept the passing of the estate to the heirs or devisees, who may assert their title, with all its incidents, until the personal representative exerts the power reposed in him by the statute. Leavins v. Butler, 8 Por. 380; Masterton v. Girard’s Heirs, 10 Ala. 60. As the power to rent is but a bare authority, it must be strictly pursued; and as the lands in the present case were not leased at public outcry, according to the requisitions of the statute, it cannot be regarded as a due execution of the power, and does not in any manner affect the rights of the devisees. Martin v. Williams, 18 Ala. 190. Neither would the taking possession of the lands by the guardian necessarily occasion a distribution, as seems to have been supposed by the counsel for the defendant in error. The legislature have met this case by the act of 1849-50, the thirty-second section of which provides, that whenever any person shall apply for letters of guardianship as regards one or more minors, having estates undivided, and derived from the same source, although as legatees, distributees, or otherwise, the same shall be granted so as to include all the minors in the same letters ; the inventories, returns and settlements to be made as though there was but one ward. Acts 1849-50, 34, 32.

In relation to the legacies bequeathed to the children, if they had not been blended together with the devise, by their insertion in the same clause of the will, and the application of the same words to each,|we should be of opinion that, as the title to the personal property vests in the executor, and the term “ distributed,” when applied to that kind of property, refers to the time when the parties entitled would have the right to the possession, the legatees could not claim the possession until the period fixed by the will; but as it is, we are clear that the intention of the testator must have been the same in relation to both his real and personal estate, given by the same clause and the same words, and as present words of bequest are used, we can, without straining, construe the term “distributed” with reference to personal property, as synonymous with divided, and as postponing, not its distribution, but its division among the legatees until the period fixed by the testator.

It follows, from the construction we have given to the will, that as the children were entitled to both the real and personal property, without waiting until tbe time to which the division was postponed, the guardian was entitled, after the expiration of eighteen months from the grant of letters testamentary, to call upon the executor for the share of the personalty to which she was entitled in her own right, as well as the undivided three-fourths bequeathed to the children. She, however, could only pursue the statutory remedy, in relation to property which, under the will, it was the duty of the executor to administer. The statute (Clay’s Dig. 196, § 28, 24) was not intended to apply to devises of which the personal representative had no control, and in relation‘to which he had exercised none of the powers conferred upon him by the statute. So far as these matters are concerned, he stands not as the executor, but as a stranger; and although, perhaps, the guardian of the devisees could, as such, confirm his acts as to the leases made, he might also repudiate them altogether, and proceed against the persons in possession. Masterton v. Girard’s Heirs, supra. They cannot, however, hold the executor responsible for the rent or possession of lands, in his representative capacity, under the act last referred to, when, under the will, he has no power to act in reference to such lands, and has exercised none of the powers conferred upon him by the laws of this State.

In relation to the proceedings in the Probate Court, the question is, whether such court erred in sustaining the demurrer to the answer of the defendant in error. The petition is not only for distribution, but a final settlement; and the facts alleged in the answer would not constitute a full de-fence, as, under our decisions, although the legatees, or either of them, were entitled, after eighteen months from the grant of letters testamentary, to call upon the executor for a settlement of the estate and distribution; yet, on the hearing, it was competent for the executor to show cause, both against the final settlement and distribution, or against the former only. Sanky v. Ellsberry, 10 Ala. 455. The only ground set forth in the answer which would prevent a final settlement, is, the allegation that suits were pending against the defendant in error as executor; and as these suits are not set out in the answer, and no reference whatever made to the records, or to any schedule which describes the claims on which they are founded, we cannot regard wbat follows the affidavit, purporting to be a statement of certain claims, as any part of the answer. The mode of proceeding in the Probate Court, however, should have been by exceptions to the answer, rather than by demurrer; and had there been a single ground properly alleged by the defendant in error, the demurrer would have been correctly overruled; but as the answer was wholly insufficient, and as no objection was made in the court below to the determination of its sufficiency in the mode adopted by the parties, we must determine that the court erred in overruling the demurrer.

The judgment is therefore reversed, and remanded.