Moores v. Moores , 41 N.J.L. 440 ( 1879 )

The opinion of the court was delivered by

Woodhull, J.

The first question presented is whether, on the death of the testator, the real estate of which he died seized descended to his heirs at law, or vested in the executrix by virtue of the will.

The solution of this question depends upon the expressed intention of the testator, to be gathered from all parts of his will.

If he plainly intended that the legal title to his real estate should vest in the executrix, instead of descending to the heirs at law, and has used apt words for that purpose, his intention must of course prevail. But the provisions of this will, read in the light of well-established rules of law, fail to disclose any such intention.

It is settled beyond controversy, that while a devise of land to executors to sell passes the interest in it, a devise that execu.tors shall sell, or that the lands shall be sold by them,, or of the land to be sold by the executors, confers a power merely, and does not give any interest. 4 Kent’s Com. 420; 1 Sugden on Powers 132-134; 1 Powell on Devises 233.

In Bergen v. Bennett, Kent, J., says: “ If a man by his will directs the executors to sell his land, this is but a bare authority without interest, for the land in the meantime descends to the heirs at law, who, until the sale, would at common law be entitled to the profits. * * * But if a man devises his land to his executors to be sold, then there is a power coupled with an interest; for the executors in the meantime take possession of the land and of the profits.” 1 Cai. Cas. 16.

“A naked authority,” says Mr. Powell, “is where a man devises that his executors shall sell his lands, or orders that his land shall be sold by his executors, .or appoints, constitutes and empowers A and B, whom he makes his executors of his last will, to sell, let, or set to sale, his estate. In all these cases the executors have only a naked authority to sell; and after the death of the testator the freehold descends to the heir, who is entitled to the profits until the sale.” 1 Powell on Devises 233, and cases.

In Chambers v. Tulane, the only power of sale given to the executors was in these words: “ It is my will and desire that all and every part and parcel of my real and personal estate hereinbefore not devised or bequeathed after my said son, H., arrives at the age of twenty-one years, in case his mother hath then departed this life, shall be sold at the discretion of my executors,” &c. It was held by Chancellor Williamson that this power of sale was nothing more than a naked power. “ It is true,” he says, “ the executors have an interest in the land with other devisees in the will named. But this is not what .is meant by a power coupled with an interest. These lands are not devised. The title descended to the heir at law. No interest is devised to the executors, and they have no control over the land as executors until the happening of certain events, and .then the only power conferred is to sell.” 1 Stockt. 146. See also Jackson v. Schauber, 7 Cow. 187; S. C., 4 Wend. 16; Den v. Snowhill, 3 Zab. 447; Herbert v. Tuthill, Saxt. 141; Gest v. Flock, 1 Green Ch. 108; Fluke v. Ex'rs of Fluke, 1 C. E. Green 478; Romaine v. Hendrickson, 9 C. E. Green 232.

Applying to the provisions of the will in question the principles of the foregoing cases and numerous others cited in the books referred to, it is clear that the executrix as such took no estate in the testator’s land, but only a bare authority to sell; and that immediately upon the testator’s death his real estate descended to and vested in his heirs at law, subject to be divested by a proper execution of the power of sale.

The next question is, whether the deed of January 29th, 1878, from Margaret Moores, executrix, &o., to the plaintiff, operated to divest the title of the heirs and to vest it in the plaintiff.

This deed recites and was evidently intended to execute' the power of sale given under the second head of the testator’s will, in which, after directing his debts tó be paid out of his estate, real and personal, he goes on to say: “Second. In order to enable my executrix hereinafter named to carry into effect the foregoing direction, I do hereby invest my said executrix with power to sell and convey my real estate in one or more lots or parcels, and at public or private sale, and to give good and sufficient titles to convey the same.”

The particular purpose intended to be effected by the power given in this part of tire will was the payment of the testator’s debts. The contingency upon which the power was intended to be exercised was the insufficiency of his personal estate for that purpose. The fact that the real estate remained unsold for more than forty years after the death of the testator, and after the settlement of his estate, raises a presumption equivalent to the strongest affirmative proof, that long before the execution of the deed under which the plaintiff claims, all the testator’s debts had been fully paid out of his personal estate. The object of the power having been already accomplished, the contingency upon which alone it was intended to be exercised having never in fact happened, and being in the nature of things no longer liable to happen, the power had ceased to have any legal existence, and the conveyance founded upon it, if not otherwise supported, was a mere nullity. It is insisted, however, on the part of tire plaintiff, that the power of the executrix to sell was not limited to a sale for payment of debts; that as the will orders all the property to be turned into money, there is a clearly implied power to sell the real estate even after debts are all paid, and that the recital in the deed, if wrong, is mere surplusage, and does not weaken the force of the conveyance. The assumption upon which this argument rests, viz., that the second clause under the second head of the will orders all the property to be turned into money, whether necessary or not for the payment of debts, is not, in my judgment, warranted by the language of the testator.

The scheme of the will seems to me to be simply this : The testator intended, in the first place, to make his whole estate, real and personal, liable for the payment of his debts; but plainly intended also that the personal estate should be first ■applied and exhausted before resorting to the real estate. In ■case the personal estate should prove insufficient for the payment of his debts, so that the sale of some part of his real ■estate would be required to make up the deficiency, then his design was that the whole of it should be sold and the entire property be turned into money.

But if, on the other hand, the personal estate should turn out to be sufficient for the payment of all his debts, so that no part of the real estate need be sold for that purpose, his intention was that his farm should remain intact for the maintenance of his family, and on the death of his wife be •equally divided between his two children, Samuel and Harriet Martin, the present plaintiffs.

It follows from this construction that the deed under which the plaintiff claims can find no support in either of the clauses referred to. At the time of its execution it was not only unauthorized by the provisions of the will, but was plainly calculated, if it was not designed, to thwart and defeat the manifest intention of the testator.

The case was rightly decided by the Circuit Court, and the rule to show cause is discharged, with costs.