Rose v. Thornley ( 1890 )

The opinion of the court was delivered by

Mr. Justice McGowan.

Josiah S. Payne died August 22, 1859, leaving a will and heirs and next of kin, as follows, viz.: widow Isabella I. Payne and two daughters, Maria T. Graveley, wife of John Graveley, of England, and Julia Henrietta Payne, afterwards the wife of John Thornley, of Charlottesville, Virginia. Among other things, the testator directed by his will that his executor should sell and dispose of the rest and residue of his estate, real and personal, “as soon after his death as he can do so conveniently and judiciously, so as to convert the whole into money,” but leaves the times, terms, and mode of sale to his sole judgment and discretion exclusively, “and until such sale shall be effected, I authorize and empower him to receive the rents.” After directing some legacies to be paid, the sale moneys of. the residue are given to J. Clarence Cochran, Arthur B. Rose, and Cowlam Graveley, to be invested, and the income to be invested and paid, one-third to Mrs. Payne for life ; one-third to Mrs. Graveley for life, and upon her death to her issue if she left any, and if none, to the legatees under her will, and if no will, to testator’s “right heirs;” and the remaining third to Julia Henrietta Payne in the same way. The part given to his wife for life went, after her death, to the daughters above. The other clauses of the will are unimportant in this case except the last, which is as follows : “I nominate, constitute, and appoint my good friend, J. Clarence Cochran, executor of this my will; with full power to sell my whole estate, real and personal,” &c.

Julia Henrietta Payne married John Thornley, of Virginia, and during her life received her share of the income, but she died January 23, 1885, leaving surviving her husband, John Thornley, and four children, viz., Josiah Payne, Julia, Jane Riching, and John, who then became entitled in their own right to a considerable interest in the estate of their grandfather, the testator. Soon after, in April, 1885, the executor, Mr. Cochran, also died, without having fully administered the estate, and especially leaving unsold (as it was considered injudicious to sell) a tract of land, partly marsh, on Charleston Neck, known as “Payne’s farm.”

Dr. Arthur B. Rose, the only remaining trustee under the will, took upon himself the duties of the trust, and also qualified as administrator de bonis non, with the will annexed. Upon taking charge of the unadministered estate, he found that the children of Mrs. Thornley were entitled to a portion of the income in his hands; and, although theyneeded.it for maintenance and support, there was no one to whom it could be safely paid, as they were minors, beyond the limits of the State, and without guardians. Under these circumstances, on December 15, 1885, he, as the representative of the estate, and with the entire consent of all the parties, instituted these proceedings to obtain the authority of the court to pay the share of the Thornley children to their father, Dr. John Thornley, without his being appointed guardian. The complaint, among other things, contained the following statement: “That upon the death of Mrs. Thornley, her children became entitled under the will, not only to one-half of the net income to which their mother was entitled during her life, but the life estate having fallen into the corpus, to one half of the estate ; that the plaintiff has in his possession, as trustee and administrator, the income to which the children of Mrs. Thornley are entitled, &c.; * * * that the plaintiff is advised that the said children being minors, non residents, and having no guardian under the control of the courts of this State, it would not be proper or safe to transfer the funds beyond the jurisdiction of this court without its order to do so upon proper security given ; that he is anxious that the funds now in his hands, and such as shall come from investments up to the time of final settlement, be paid to said children, but also that upon the final settlement of the estate he may be authorized and directed to pay over the corpus ; that he is informed that said children are necessitous, and that their father’s means are quite limited,” &c. The court sustained this view, and ordered the administrator to pay over to Dr. John Thornley, father of the minors, the income in his hands belonging to them for their use, &c.

But in 1889 Dr. Thornley, the father, died, and thereupon Frank A. Massie was appointed guardian of the children in the State of Virginia. He asked and obtained leave, as guardian, to. come into the case as a defendant; and his answer, for the first, time, changed the consent character of the proceedings — demanded an accounting, and alleged “that the real estate .now in the hands of the trustee and administrator with the will annexed cannot now' be sold by him except under the direction of the court; that it produces little or no income, and that it should be sold under the direction of the court.”

The question whether Dr. Rose, the representative of the estate, by the proceeding which he filed for a particular purpose,, had forfeited the right given by the will to make the sale, and that the master, under the order of court, must make it, was. referred to master Miles, who made a full and elaborate report, reviewing the authorities (which should appear in the report of the case),, and recommending that the court order the sale to be made by the master. Upon exceptions, this report came before Judge Hudson, who adjudged that Arthur B. Rose, as trustee, and administrator de bonis non, with the will annexed, of the estate of Josiah S. Payne, has full power of sale of the real estate of Josiah S. Payne, without the intervention of the court, and overruled the report.

From this judgment, Frank A. Massie, guardian, and Julian Thornley, appeal upon the following grounds: “I. That the trustee and administrator, Dr. A. B. Rose, having craved the aid of the court in the administration of the estate entrusted to him, put the estate into the care and custody of the court, and that the court should have taken care that the estate is administered for the advantage of those beneficially entitled thereto, and not for that of the administrator or trustee. II. That in this case the court, even if it does not order the sale to be made by the master, should have kept a supervision over the administrator and trustee and required him to sell the property under the direction of the court. III. That as this is an equity case, all sales of the property involved should be made by the master, not only as a matter of law, but also as a matter of discretion, because sales made by the master are made at far less expense than if made by the administrator, &c. IV. That his honor should have further held that the court will not allow an administrator, executor, or trustee to burden those interested in the estate with .a double set of costs. Either trusting to himself and his counsel, he must administer the estate himself, or if he goes into court for its aid, and there creates extra costs and expenses and relieves himself of responsibility, he must then administer the estate under the direction of the court in the least expensive manner and through its officer. And, finally, all this is made the stronger and the more obligatory on the court.where minors are concerned.”

Under the law every man has the right to make his own will, and, if he desires to have his property sold, to declare how and by whom it.shall be done. When Dr. Rose received his letters as administrator with the will annexed, there can be no doubt that he had the right (section 1972, Gr. S.) to sell all the unsold property of the testator, Payne, according to the terms of his will; and, as it appears, he had the land surveyed — divided into lots — and was making arrangements to sell when the earthquake came, which made a sale at that time, or soon after, unadvisable. Nothing has since occurred to deprive him of that undoubted right, unless it may be found in the proceedings which he instituted in the court after the death of Mrs. Thornley (1885) for the purposes therein indicated. We think that the doctrine of Thomson v. Palmer, 2 Rich. Eq., 36, is sound — that “when an executor or administrator comes for the aid of the court; in administering the estate in his hands, the court shall be placed in possession of the fund to be administered, and when the court is called upon to order a sale of land in aid of assets, it should have the command of the proceeds of sale to be administered,” &c. We do not, however, see the analogy claimed to exist between that case and the one at bar. There is no suggestion here that the estate is insolvent, with numerous creditors, or that there is any such complexity in it as to make it necessary that the court should administer it, or that any such request was made.

Undoubtedly an executor, under certain circumstances, may ask the court to relieve him, and to take upon itself the administration of the estate; but we do not understand that such must be the result of every application for any purpose to the court, but its effect must depend largely upon the character of the application made. If the proceedings in this case must have the effect of transferring to the court the whole administration, it can only be as a necessary incident or legal effect, for the whole record shows that such intention or expectation was not in the minds of the executor or any of the parties. It does not strike us as exactly accurate to say that the executor “put the estate into the care and control of the court.” Nor do we think that such result was the necessary consequence of the proceeding. The executor, Dr. Rose, had in his hands certain funds belonging to the Thornley children, w'ho were minors without guardians. He could not be expected to pay them until they were represented by some one who could give legal acquittance; but he was willing to make payment to the father, provided the court would authorize such payment. 'The primary object of the proceeding was to obtain that authority for the exclusive benefit of those in whose behalf complaint is now made. There was not an intimation in the proceedings as to transferring the administration to the court.

We cannot distinguish this case in principle from that of The American Bible Society v. Noble, 11 Rich. Eq., 186. In that case a bill was filed by distributees against the administrator and widow of John B. Bull, as he was supposed to have died intestate. Some of the property had been sold by the order of the court, when a will was discovered. By the Circuit decree the commissioner- was ordered to make sale of the remaining property. The executor appealed, on the ground that he was directed by the will to make the sale; held, that the Circuit decree was erroneous, and that the executor had the right to make the sale. In delivering the judgment of the Equity Appeal Court, Chancellor Wardlaw said: “As we understand the facts, ‘Berry Hill’ is still unsold, and as we have adjudged this tract to be parcel of the general Bull estate, which the executors were directed by the testator to sell, and as there is no charge of insolvency or misconduct made as to the executor, we adjudge that it is his privilege to make the sale of ‘Berry Hill,’ and that so much of the decretal order as directs it to be made by the commissioner be rescinded,” &c. Here there is not the slightest intimation of insolvency or misconduct on the part of the executor. In the late case of Anderson v. Butler (31 S. C., 198), the Chief Justice, in delivering the judgment of the court, said: “Now, this power [to sell] having been conferred, and it not being revoked, it is the law of the case and must control, unless suspended or vacated by the courts for some reason authorizing the court thus to suspend or to vacate. Doubtless an executor may be removed from his office and his powers revoked by the courts for subsequent insolvency, incompetency, or fraudulent conduct in reference to the management of the estate; but in the absence of these and all similar causes we know of no authority in the courts to take from the executor the power and duties conferred upon him by the testator [citing the above case of Noble]. As we have said, every one has the right to make his own will, and to appoint his own agents for carrying it into effect, and when not against the law of the land it would be an usurpation of power and a dangerous infringement of a sacred right for the courts to change, or in any way modify, the wishes and purposes of the testator as. solemnly expressed in his last will and testament,” &c.

We do not think the case should be controlled by the different statutes cited, as to who is the proper officer to make sales ordered by the Court of Common Pleas. The question is not what officer shall make a sale ordered by the court, but whether the court should order the sale at all, or leave it to be made as the law directs, under the terms of the will itself.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.