Harvey Officer v. Simpson , 27 Minn. 147 ( 1880 )

Gilfillan, C. J.

The will involved in this ease was before us for construction in Simpson v. Cook, 24 Minn. 180. The only respect in which a construction of it is sought now, is in regard to the power of the trustee appointed by the will to sell the real estate other than that in block 16. The same question was presented in Simpson v. Cook, and we held there was no power given the trustee to sell such other real estate. Upon again examining the provisions of the will, we are satisfied that decision was correct. Not only is there no language in the will expressing an intention that the trustee should have authority in any event to sell the other real estate, but such intention is excluded by the power being confined to the real estate in block 16. The will reads in the fifth clause: “Whenever my said executor shall deem it best for the interests of my estate, he may sell the whole, or any part, of the real estate belonging to me in block -16.” The only mention in'the will of the other real estate is in the seventh clause: “It is my desire that no division of the balance of my real estate shall be made amongst my children until the youngest child shall become of lawful age;” and in the eighth clause: “When my youngest child shall become of lawful age, all the rest and residue of my real estate and personal property, wheresoever situate, shall be equally divided between my said wife and our children, share and share alike.” These clauses show it was the intention of the testator that his real estate, other than that in block 36, should remain intact until the time indicated for its division.

The will provides, in the sixth clause, that the executor shall pay, monthly or quarterly, to the wife, such sums of money as, in his judgment, may be necessary for her prudent and economical support and maintenance, and that of such of the children as may live with her, during their minority, or until the marriage of the daughters; and shall pay for the education and maintenance of such of the children as may be absent at school with the consent of the wife and the executor. It is argued that this is the paramount object of the trust, and that if this object cannot be carried out except by a sale of the real estate, as the keeping intact the real estate other than that in block 16 is a subordinate object, it must yield, and in that event the power to sell exists. The report of the referee, while it shows that it would-be better for all concerned to have such other real estate sold, does not show it necessary for the support and maintenance of the widow and children. But if it did, it would not affect the question. The power to sell the real estate could exist only where such was the intention of the testator. If he did not intend it to be sold for the support of the wddow and children, then the trustee has no power to sell it for that purpose. The will indicates the fund or portion of the estate from which he intended the widow and children to be supported. Besides the real estate, the testator left a considerable amount of personal property. The real estate authorized to be sold was of great value, and that not authorized to be sold was bringing considerable rent. In the latter part of clause 7, the will authorizes the trustee, at any time, at his discretion, to make advances to any one or more of the children of lawful age, or lawfully married, of such sums as he may think can be spared from the net incomes and profits of the estate, or from the proceeds of the real estate authorized to be sold, without prejudice to the estate, and without prejudice to the maintenance ■of the widow and minor children. It was clearly not the testator’s intention that the real estate which the trustee was not expressly authorized to sell should be, in any event, diverted from his purpose to have it remain a part of the estate till ■divided as the will directs.

Judgment affirmed.