In re Estate of Delaney

By the Court, Rhodes, J.:

The petitioner attacks the conveyances made by the executor, on the grounds that it does not appear from the will, that the testator intended to give the executor the power of sale without a compliance with the provisions of the Probate Act, in respect to procuring orders of sale and confirmation; and that such orders were absolutely essential to the validity of the executor’s sales and conveyances, without regard to the intention of the testator. The section upon which reliance is mainly placed is section one hundred and seventy-eight of the Probate Act, as amended in 1861 (Statutes 1861, p. 645).

There are certain propositions which have a bearing upon the principal questions in the case, which may be laid down without further discussion.

The will devised to the executor the fee of the lands in question, to be held in trust for the purposes mentioned in the will. The renunciation by the widow of the testator, of her right under the will, and the order of the Probate Court setting off to her a portion of the property as common property, did not extinguish the trusts declared in the will, nor divest the executor of the fee in the remaining portion of the property.

The executor retained the same power over the portion of the estate remaining in his hands after the renunciation by the widow, and the order setting apart the property to her, that he possessed prior to the renunciation.

Section one hundred and seventy-eight, above referred to, provides that, when property is directed by the will to be sold, the executor may sell, without procuring an order of sale from the Probate Court. The executor in this case having been directed by the will to sell the property, no order of sale was requisite, even assuming that that section is applicable to this case.

That section further provides that, “in all cases no sale shall be valid, unless confirmed by the Court, under the rules prescribed in cases of sale of real estate by an administrator.” The position of the executor and the purchaser's is that this provision, while applicable to a sale by an executor possessing merely the power of sale, is not applicable to a sale made by an executor, who, as here, holds the fee in trust; and they further, contend that if confirmation were necessary, it was had in this case. The exee•utor’s accounts, which were filed in the Probate Court, •charged him with the sums of money received upon the sales of the several parcels of the real estate in controversy; and on the hearing thereof, the accounts were allowed and approved by the Court, and the orders of allowance and approval not having been appealed from, became final; and it is claimed that the acquiescence in those orders by the parties interested in the estate, amounted to a confirmation of the sales.

The decree of final distribution from which this appeal is taken, contains an order to the effect that “ all the acts and ¡proceedings of said executor as reported to this Court, and as appearing upon the records, be and the same are hereby ¡approved and confirmed;” and it is claimed that this order -also amounts to a confirmation of the sales. Those matters 'cannot be relied on as working that result. The confirmation intended by section one hundred and seventy-eight is such as is provided for by section one hundred and seventy-one, and is made after a return of sale has been filed, and the parties in interest have had an opportunity to file objections to the sale, and to be heard thereupon.

The only question remaining is whether the provision of section one hundred and seventy-eight, requiring confirmation of sale, is applicable to the sales made by the executor, where the fee of lands is devised to him in trust. The question does not appear to have been determined by this Court.

There is a clearly marked distinction between a mere executor (whether his power to sell lands is conferred by the will or by the order of the Probate Court) and an executor to whom the lands are devised in trust to carry into effect the provisions of the will. In the former case he possesses the power of sale; but in the latter he takes the fee, or any less estate which the testator may devise. In Jackson v. Shuber, 7 Cow. 194, Savage, C. J., notices this distinction, and says that “in the one case a naked authority is given; in the other an authority coupled with an interest. In the former case the freehold remains with the heir, until a sale by the executors. In the latter, the freehold rests at once in the executors.” There are many other cases to the same effect, among which may be cited, Judson v. Gibbons, 5 Wend. 226; Conklin v. Egerton, 21 Wend. 432; Learned v. Bridge, 17 Pick. 339; Knight v. Loomis, 30 Me. 204; Deering v. Adams, 37 Me. 264. In the latter case the distinction we have mentioned—the double capacity of executor and of trustee holding the title—was noted and maintained, although it was held that the executor took the fee by implication. The testator may devise his lands to a trustee to affectuate any purpose expressed in the will, but the trustee does not become the executor, by the mere fact of the devise in trust. The testator may nominate the trustee, or any other competent person as his executor; and if he devises the lands to the same person that he appoints as his executor, the executor will take and hold the lands in the same manner and capacity that a trustee would, had the lands been devised to him. And it would seem difficult to maintain any distinction on principle between the effect of a devise in fee in that manner, and a conveyance of the fee to the person who was afterward appointed as the executor. It will be seen, on an examination of the statute concerning wills, that an almost unlimited power of disposition of property is left in the hands of the testator—he, of course, not possessing the power to delay or defeat the claims of his creditors—and we see nothing in the Probate Act evincive of a contrary intention.

Our conclusion is that the testator intended to give, and did give the executor the power of sale, without requiring a compliance with section one hundred and seventy-eight of the Probate Act, and that the provisions of that section are not applicable to the sales of the real estate in question in this case.

Order affirmed. Remittitur forthwith.

Mr. Chief Justice Wallace did not express an opinion.

Mr. Justice Crockett, being disqualified, did not participate in the decision.