Anderson v. Stockdale , 1884 Tex. LEXIS 187 ( 1884 )

Watts, J. Com. App.

According to the allegations in the petition, Mrs. Anderson’s will bore date May 30, 1860, and was probated in 1866. It is also alleged that Fielding Jones, one of the executors nominated in the will, died during the life of the testatrix Mrs. Anderson, and that F. S. Stockdale qualified as executor, and as such executor has conveyed the several tracts of land mentioned in the petition. The point made and insisted upon is, that, as Jones and Stockdale were nominated joint executors, that notwithstanding Jones’ death, Stockdale had no authority, acting alone, to execute the trusts created by the will. So far as is necessary for the consideration of the question presented, the following extract from the will is deemed sufficient:

“ I appoint my uncle, Fielding Jones, and my cousin, Fletcher S. Stockdale, joint executors of this will, administrators of my estate and guardians of the person and property of my son Philip, and request them to accept the trust and office. It is moreover my will and desire that the county court shall have no further cognizance or control of my estate and its settlement than the registration of this will, and that my said executors and administrators shall have and exercise the fullest and most absolute control of my estate and of the person and property of my son Philip, that is accorded and permitted by law.”

The doctrine that where a power is given to two or more persons by name, without any words of survivorship, that it cannot be exercised by the others alone, after the death or renunciation of any one of the trustees, has been recognized and applied for ages. And prior to the passage of the act of 21 Henry VIII., ch. 4, that doctrine was applied by the English courts alike to executors and other trustees. By the terms of that act executors were exempted from, that rule, as it was therein provided that the qualified and acting executor may execute the will when the others “ do refuse to take upon him or them the administration and charge of the same testament and last will wherein they be so named as executors.”

At the date as well as the probate of the will of Mrs. Anderson our statute provided: “ When a will shall have been probated, it shall be the duty of the court to grant letters testamentary to the executor or executors appointed by such will, if any there be, or to such of them as are not disqualified and are willing to accept the trust and qualify according to law within twenty days after such probate.” Pasch. Dig., art. 1268.

It was in effect provided by art. 1335, Pasch. Dig., also then in force, that where there was more than one executor named in the letter and one or more of them refused to act, the others might return an inventory, and should thereafter have the whole administration.

These provisions of our statute, it has been correctly held, en-grafted upon our probate system the principles of the act of 21 Henry VIII., ch. 4 And as a sequence thereto, the doctrine that joint trustees must act together in the execution of the power has no application to executors nominated as such, but that when one or more of such executors are unable to act, or refuse to qualify, or refuse to act, the others might qualify and execute the trust. Johnson v. Bowden, 43 Tex., 670; Blanton v. Mayes, 58 Tex., 422.

As applied to what are termed independent wills the general doctrine is subject to exceptions and limitations, dependent upon the terms of the will. For an illustration of which, see Blanton v. Mayes, supra.

As an original question, the writer might doubt the application of the doctrine to independent wills to that extent which would authorize less than all the executors named to execute their provisions independently of the probate court; still it must now be considered as settled by the case of Johnson v. Bowden, that when there is nothing in the terms of the will that indicates a different intention upon the part of the testator, that doctrine applies with full force, and such wills may be executed by a less number than all of the executors nominated therein, under circumstances named in the statute, independently of the probate court.

However, it is insisted that the language of the will now being considered indicates that the testatrix intended that the two executors nominated in the will should act together and in no other way. This is claimed to result from the use of the word “joint” in connection with the nomination. But if that term had not been used, and the two nominated had qualified under the will, they would have been joint executors. So it would seem to follow that the testatrix did not intend more by the use of that word than would have been implied by law without its being used. The power is conferred upon the executors as a class, to be exercised by virtue of their office as executors. And it seems to be settled that, where the power is thus conferred, it may be exercised by any one of the executors named, in the event the others are disqualified or refuse to act. Johnson v. Bowden, supra; Ward well v. McDowell, 31 Ill., 364. Again, as a general rule, the will speaks at the time of the death of the testator or testatrix, and not before that time. Bedfield on the Law of Wills, vol. 1, 379, etc.

It appears that Jones died before the testatrix; that notwithstanding his death she made no change whatever in the will. Thus if the will with reference to the executor is to speak only from the death of the testatrix, but one executor was in fact appointed. For as Jones was then dead, the legal effect upon the will would doubtless be the same as if his. name had not been mentioned therein.

The fact that Mrs. Anderson failed to make any change in the will, with reference to the executors named, after the death of Jones, considering the provisions of the statute then in force as quoted above, is a potent circumstance tending to the conclusion that she was satisfied with Stockdale as sole executor, and intended that he should act as such.

.Our conclusion upon this branch of the case is, that Stockdale had . the right to qualify as executor, and to exercise all the powers conferred by the will.

And the next question in order for consideration is as to the extent of the power conferred by the will. The language is “ that my said executors and administrators shall have and exercise the fullest and most absolute control of my estate, and of the person and property of my son Philip, that is accorded and permitted by law.” The expressed intention was that the will should be carried into effect independently of the county court. And while there is no express power to sell and convey real estate, nevertheless if it should become necessary to do so in paying debts, or carrying out executory contracts of the testatrix, such power would be implied from the language used, when considered with reference to the fact that the estate was to be administered independently of the county court. The testatrix must have intended that the executor should have and exercise such power as would be necessary to accomplish that object. This is deriving the power, not from express grant, but by necessary implication.

In Blanton v. Mayes, supra, it was said: “The terms ‘manage' and ‘ control,’ standing alone and unaided by other considerations, could not be considered as conferring a power to sell.” The usual and ordinary signification of the word “ control ” is the same as the word “ manage,” which is to have authority over the particular matter, to check, to restrain, to govern with reference thereto. The language used in conferring the power is in legal effect the same as if it had been “ entire control of my estate so far as is accorded and permitted by law.”

The extent of the power as thus conferred would be to do whatever was necessary in and about the administration of the estate. But it is not believed that the executor, under the terms of the will, would have the power to sell and convey the lands of the estate at his discretion, or for any other purpose than the payment of debts, or carrying into execution the executory contracts with reference to lands made by the testatrix. A conveyance made by the executor for any other purpose would be without authority, and no title would pass thereby. It would not stand upon the same footing as one based upon a defective or irregular execution of a power, which equity would aid or time cure. Connolly v. Hammond, 51 Tex., 635. While such a conveyance might be made the basis for the defense of limitations, no facts are alleged which show that appellant is barred from asserting his rights as against such deed. And as his is a legal title, the doctrine of stale demand cannot be invoked against him.

It is claimed by appellant that the judgment in favor of Johnson and against Levi Jones was barred by limitations at the time of the conveyance by Stockdale to Johnson, July 27,1868. The judgment was rendered June 3, 1853, for the sum of $17,367. And the position is assumed by appellant that it was barred, and therefore afforded no authority to Stockdale to make the conveyance.

Without expressing any opinion as to what might be the effect upon the question by reason of the provisions of the constitution of 1869, it will be remembered that all limitations as to money demands, suits, etc., were suspended January 28, 1861, and remained so suspended until September 2, 1866. Then, counting from the date of the judgment to the 28th day of January, 1861, and it will be seen that limitations had run for seven years, seven months and twenty-five days. And counting from the 2d day of September, 1866, to July the 27th, 1868, date of conveyance from Stockdale to Johnson, will give one year, ten months and twenty-five days, which, when added together, make nine years, six months and twenty days, as the greatest length of time that limitations could have run against that judgment, whereas ten years was the shortest period in which the statute would bar a judgment. P. D., art. 4608.

By reason of the execution of the instrument to Jones, of April 24, 1855, the lands situated in Jackson and Calhoun counties therein described stood bound for the payment of that judgment. Mrs. Anderson therein admitted that she had not paid value for the land, and that the judgment in part was for the purchase money thereof. Upon these facts Johnson could have subjected the land to his judgment; and undoubtedly she was prompted to the execution of the instrument in order to avoid this, and secure time to have the conflicting titles to the same settled.

Ho payments are shown to have been made upon the judgment; therefore, it would amount to about $10,000 at the time of the conveyance from Stockdale to Johnson in 1868. As has been seen, Stockdale, as such executor, was authorized to make the conveyance; for, while that judgment was not against Mrs. Anderson, still it as effectually bound the land as if it had been against her in person.

So far, then, as this branch of the case is concerned, the court below correctly sustained the demurrer to the petition.

After the conveyance to Johnson, the interest the estate retained in the Calhoun county lands was three-eighths of one league, which from the allegations in the petition seems to have been conveyed by Stockdale as executor to the trustees of the Indianola City and Land Company.

For what purpose this conveyance was made is not shown by the allegations in the petition; but from the recitals in the instrument creating the joint stock company, it appears that shares of stock were to be issued to Stockdale as executor in consideration of the land. As has been seen, such a conveyance by him would not be authorized by the will.

But it is here claimed that there was a non-joinder of parties defendant, in that the stockholders of the company were not made parties. The instrument creating the company vested the legal title to the land in the trustees, and conferred upon them complete power over the same, including that to convey the land or any part thereof.

In Kerrison v. Stewart, 3 Otto, 160, Chief Justice Waite delivering the opinion of the court, said: “ It cannot be doubted.that, under some circumstances, a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subject to such obligations that those for whom he holds will be bound by what is done against him, as well as what is done by him. The difficulty lies in ascertaining whether he occupies such a position, not in determining its effect if he does. If he has been made such a representative, it is well settled that his beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust; or to one by a stranger against him to defeat it in whole or in part. In such cases, the trustee is in court for and on behalf of the beneficiaries; and they, though not parties, are bound by the judgment, unless it is impeached for fraud or collusion between him and the adverse party.”

[Opinion adopted June 10, 1884.]

Here the trustees come within that principle, and it,was not necessary to make the stockholders parties to the suit.

It is in effect alleged that Stockdale was, at the filing of the suit, acting as the executor of the last will of Mrs. Anderson. Under that allegation, so far as Stockdale is concerned, appellant’s right to an account would not be barred by limitation.

Then it was error for the court to sustain the demurrer to and dismiss the petition upon that ground.

Under our liberal system there is no valid objection to joining in the same proceeding the executor and the trustees of the Land Company, and thereby securing an adjudication of the whole matter in one and the same proceeding. These matters are intimately connected and all grow out of the matter of the estate.

The other matters are not so alleged as to require any consideration.

Our conclusion is that the court erred in the particulars indicated, and that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.