Creamer v. Holbrook , 99 Ala. 52 ( 1892 )

WALKEN, J.

Matthew Creamer by his last will devised all his property to his executors in trust for uses and purposes specified in the will. The executors were authorized in the exercise of their judgment, if they should deem it to the interest of the estate, to sell any of the property of the estate at private or public sale, and to invest or dispose of the proceeds of such sales in carrying out the provisions of the trust. Two residents of California, where the testator resided, were named as executors in that State, the will expressly providing that they were to be accountable only for the moneys or property which they might receive ; while the testator’s brother, David Creamer, a resident of Alabama, and the appellant in this case, was named as sole executor in the States of Alabama and Georgia, the will also expressly providing that he should be accountable only for the moneys and property coming to his hands.

We understand from the provisions of the will fixing the powers and duties of the executors that it was the intention of the testator to confer upon the single executor named for the States of Alabama and Georgia, all those powers and duties so far as they were applicable to the part of the testator’s property situated in those States; while, as to his property situated elsewhere, like powers and duties were conferred upon the persons who were named as executors in the State of the testator’s residence.

The apjDellant, David Creamer, qualified as executor under the will, and took charge of the testator’s property in the States of Alabama and Georgia. This bill is filed by beneficiaries under the will to enforce the trusts thereof upon lands situated in this State. The appellant, who was the defendant below, contends that more than ten years before the bill was filed, at a sale made by himself under the power conferred by the will, he purchased the lands upon which the trust is sought to be enforced, accounted for the purchase price thereof in a settlement of his executorship in the Probate Court, and since the date of such purchase has had possession of the lands, claiming them adversely as his individual property, freed from any trust in favor of the complainants.

The testator’s property in Alabama and Georgia was devised to the executor named for those States. That person’s functions under the will reached beyond those of a mere executor. He was charged with the execution of a trust for the management of the testator’s property after his death, and for its ultimate distribution among the beneficiaries of his bounty. He occupied a dual relation to the will — -that of executor proper, and that of trustee. It is in his character as a devisee in trust that he was invested with general powers of management, of selling property and reinvesting the proceeds of sales, and of paying and settling money or other property in carrying out the purposes of the trust. These powers clearly imply a special personal confidence in the person upon whom they were conferred. The trust was personal in its character, and he who was named as executor might continue to hold the land as trustee, after his functions as executor had terminated. The Probate Court has no jurisdiction over such a trust. For its enforcement resort must be had to a court of equity.—Proctor v. Scharpff, 80 Ala. 227; McCarthy v. McCarthy, 74 Ala. 546; Perkins v. Lewis, 41 Ala. 649.

The fact, however, that a testator by his will devolves such a special personal trust or power upon the person who is named as executor does not necessarily oust the jurisdiction of the Probate Court over the administration of the estate. If the trust or power is not such that its execution is involved in the discharge of the duties of an ordinary executor, so that the functions of the one person in his two characters, as executor and as trustee, are not so blended and mingled that they can not be distinguished or separated, the one from the other, then the Probate Court has jurisdiction over the executor in reference to his purely executorial functions, though it has no power over him in his other independent capacity as a trustee under the will. But if such special trust or power is attached to the executorial office or character, and is not personal to him who is named as executor and trustee, then the jurisdiction of the Probate Court is ousted, as the administration of the estate under the will involves the execution of a trust of which only a court of equity can take cognizance.—Harland v. Person, 93 Ala. 273; Hinson v. Williamson, 74 Ala. 180; Foxworth v. White; 72 Ala. 224. "When one person is appointed executor, and is also made a trustee with powers unconnected with his ordinary duties as an executor, the Probate Court can exercise the same control over him as an executor merely as it could if he had been made the executor simply, and the special trust in question had been conferred upon some other person.

In the present case the special directions of the will are not in reference to the discharge of ordinary executorial functions. The devise was not made, and the powers of the devisees in trust were not conferred, for the purposes o'f an ordinary administration, but in furtherance of a scheme for the management of the testator’s property after his death, and for its ultimate appropriation in carrying out the purposes of the trust. The special trust might have remained wholly unexecuted until after the merely executorial functions had been fully discharged. The devise was not to the executors as such, but to the same persons as trustees. Neither the trust nor the powers and duties attached to it would have devolved upon an administrator with the will annexed. Those powers and duties were personal trusts, confided to the same persons who were named as executors; but were not mere executorial duties attached to the executorial office. The fact that the same person who was executor was also a trustee of such an independent .trust did not oust the jurisdiction of the Probate Court as to such matters as pertained to his purely executorial functions. The Probate Court had jurisdiction of David Creamer’s settlement as executor merely.—Harland v. Person, supra; Ex parte Dickson, 64 Ala. 188.

David Creamer made a final settlement of his executor-ship in the Probate Court of Cleburne county. Notice of that settlement was given in pursuance of the terms of the special statute then of force in that county. — Acts of Ala. 1869-70, p. 337. Some, at least, of the complainants were regularly made parties to that settlement, so as to be bound thereby. In that settlement the executor accounted for the amounts of his bids at the sales made by himself of the property now sought to be subjected to the trusts of the will. Persons who were parties to that settlement could not, so long as it remains unimpeached by direct attack, claim, in a court of equity, the same land of the sale of which they received the benefit, by treating the purchase-money therefor as assets, which were fully accounted for to them on such final settlement. They could not at once accept the benefits of the sales and repudiate them as of no effect. Robertson v. Bradford, 73 Ala. 116; Bell v. Craig, 52 Ala. 215; Powell v. Powell, 80 Ala. 11. The effect of that settlement as an estoppel is not lessened by the consideration that the sales in question were voidable, and that the Probate Court was without jurisdiction in regard to them. No intervention of any court was necessary to the due exercise of the powers confided to the executors in their characters as devisees in trust. Only a court of equity had jurisdiction over them as trustees of' a trust independent of the executorship. But it was not necessary that that jurisdiction should be called into exercise to enable them to execute the powers conferred upon them. The jurisdiction of the Probate Court over David Creamer’s settlement, as executor merely, was not affected by the circumstance that assets, accounted for on that settlement, came to his hands as the result of sales under a trust power, as to the exercise of which the Probate Court was without jurisdiction. It is not because those sales are recognized as valid that the complainants can not obtain the relief sought in this case. It is because they can not retain the benefit of them as valid sales, and at the same time repudiate them as invalid.

The complainants, or some of them, may desire to make a direct attack upon the settlement in the Probate Court. Possibly, this may be done by appropriate averments and proof in this case. The cause will be remanded to afford them an opportunity to take such steps as they may be advised are proper to avoid the effect of that settlement. In the present state of the pleadings and proof the bill should be dismissed.

Beversed and remanded.