Compton v. McMahan
| Decision Date | 23 November 1885 |
| Citation | 19 Mo.App. 494 |
| Parties | BELLE COMPTON, Respondent, v. WILLIAM MCMAHAN, ADMINISTRATOR, ETC., SAMUEL P. SPARKS, Interpleader, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.
Reversed and remanded.
Statement of case by the court.
The facts in this case are, that at the June term 1883, of circuit court of Johnson county, Missoui, an agreed statement of fact complying with statutory requirements was filed and the cause submitted.
From the statement the following facts appear:
That William McMahan, the defendant, is administrator with the will annexed, of the estate of William Stockton, deceased; that said William Stockton died August 1, 1881, and his will was duly probated August 9, 1881. The will (which contains much that is immaterial here) provides for payments of debts; that all his personal property be divided among his heirs, etc., according to certain conditions. The testator uses then the following language in reference to his real estate:
“It is my wish and desire that my executor shall as soon as it would be profitable and convenient, sell my real estate at such times and on such terms as he may deem best and proper, and divide the money arising from such sale among my said children, subject to the exceptions and conditions above stated.”
The remainder of the will provides that, as he leaves thirteen living children, and one dead, his estate shall be divided into fourteen shares and one share shall be one-fourteenth. The remainder of the will is not material.
It further appears from said statement that the personalty of the decedent was more than sufficient to pay debts; that C. C. Stockton was one of said testator's children; that at his death, the testator was seized of certain described real estate in Johnson county, Missouri; that on October 28, 1881, the interest of said C. C. Stockton in said real estate was exposed to sale under execution and bought by plaintiff for one hundred and forty dollars; that said execution was based on a judgment in favor of one Wm. Lemmon against said C. C. Stockton for over eight hundred dollars, dated February 15, 1879; that plaintiff paid the sheriff her said bid and she received from him a deed in due form; that on March 15, 1883, said administrator sold the land and has the proceeds in his hands, and that the share of C. C. Stockton is five hundred and eighty-three dollars; that on March 29, 1883, said C. C. Stockton signed, sealed and delivered to S. P. Sparks, an instrument of writing, wherein he says for the sum of three hundred dollars he has sold, conveyed, assigned and set over to said Sparks “all my title, whether legal or equitable, present or expectant, vested or contingent, whether as heir at law or legatee, in and to all the real and personal estate of which my father died seized or possessed.”
It is then submitted to the court whether said administrator shall pay over the money to the plaintiff or the interpleader.
The finding of the court was for plaintiff, and aft proper steps by appellant the case was appealed.
SAMUEL P. SPARKS, for the appellant.
I. The direction contained in the will to the executor to sell, was positive; only the time and terms of sale was left to him, not whether there should be any
sale. This amounts to a conversion of the land into money from the death of the testator and the land becomes personalty, and the legal title is in the executor in special trust, and is not vendible on an execution against one of the heirs, treating it as land. 2 Jarman on Wills (5 Am. Ed.) 179; Bogart v. Hertell, 10 Peters 532; Baker v. Copenbarger, 15 Ill. 103; Freeman on Executions, 279; Wilson v. Wilson, 54 Mo. 213; 1 Story's Eq., sect. 793.
II. Even if the executor had only the naked power to sell, the interest of the heir was confined to the time between the death of testator and the sale of land by executor, and that was the only interest acquired by purchaser at such sale; nor could such sale prevent the execution of the power. 1 Sugden on Powers. 189; Smythe v. Anderson, 5 Cent. Law Journal, 453.
III. The sheriff's deed, conveying the interest of the heir, would not operate to convey the proceeds of the land in the hands of the executor arising from the sale of the land, under the will. A sheriff's deed does not operate to convey an after-acquired interest. White v. Davis, 50 Mo. 333; 3 Pom. Eq. Jur., sect. 1164.
IV. The determination of the issues in this case involves the title of real estate, if the theory of respondent is correct, but otherwise, according to the theory of appellant.
JOHN J. COCKRELL, for the respondent.
I. At common law a devise that executors “shall sell” vests no title in the executors, but only gives them a naked power to sell, and leaves the title in the heirs. 1 Williams on Executors, 654; 1 Sugden on Powers, 131; Haggard v. Rout, 6 B. Monroe (Ky.) 249; 4 Kent's Com. (7 Ed.) 336; Coke on Littleton, sect. 169. By section 3117, Revised Statutes, the common law of England, etc., shall be the rule of action in this state.
II. The title to realty being in the heir, he can convey it as any other realty, and the purchaser acquires the heir's title. Then when the executor sells the land
under the power, the grantee from the heir is entitled to the proceeds, and a subsequent assignment by the heir is invalid. 1 Williams on Executors, 660; Jarman on Wills, 658; Crittenden v. Fairchild, 41 N. Y. 289; Geiger v. Maynard, 6 Gill and J. (Md.) 420; Romaine v. Hendrickson, 24 N. J. Equity, 231.
III. Though a mere equity may not be salable on execution in this state, in this case the heir has the actual title to the land. The purchase of the heir's interest does not prevent the execution of the power. But the fact that the executor has the authority to sell the land cannot divest the right of purchaser at execution sale on a judgment against the heir.
This case presents some important legal questions, about which there is such diversity of opinion in the text books and adjudicated cases, that one finds himself lost in a maze of matter, impossible of elucidation.
In the first place, as this is not a devise to the executor, but merely a direction that he shall sell, it vests no title in the executor, but gives him merely a naked trust power to sell.
The conclusions arrived at by these writers are fully justified by the authorities on the subject, and may fairly be stated as settled law.
In such case it appears to be equally well settled that the land will descend, according to the course of the law, to the heir, subject to the power.
It is likewise well nigh universally held that when the ancestor directs land to be sold, the direction being absolute, and not discretionary with the executor, as to time or otherwise, the land is considered money from the date of the ancestor's death. This, in recognition of that principle of equity, which considers that done which is directed to be done, and in a case like this, is denominated an equitable conversion.
It is familiar law that personalty goes to the executor and not the heir. There appears, therefore, when considered logically, an irreconcilability, on principle, in the two doctrines.
The authorities bring us to this: that land directed to be sold merely, does not go to the executor, but to the heir, subject to the naked power of sale. That land directed to be sold is to be deemed money, and as such, does go to the executor.
There are authorities hereinafter cited, well grounded in reason, which hold that if the direction to sell is absolute, but the time when the sale shall be, is left to the discretion of the executor, there will be no conversion into money till the land is actually sold. These, however, do not relieve the anomaly presented above.
In this case we find the will is, that “it is my wish and desire that my executors shall, as soon as it would be profitable and convenient, sell my real estate at such times and on such terms as they may deem best and proper.”
There is, therefore, under the authorities, only a naked power given to the executor, and he takes no estate in the land. It is likewise an equitable conversion of the land into money; whether at the testator's death or at the executor's sale, we shall see further on.
It is a conversion: for the direction to sell is absolute and only the time and terms discretionary. In such cases the conversion is complete.
The doctrine of equitable conversion is extremely artificial (4 B. Monroe 253), and from a recognition of this fact we naturally prefer, when authorities and precedents are so widely apart, to follow those most consistent with reason and an intelligent discrimination between the different principles of fundamental law. The law, without volition on the part of the ancestor, casts the realty of which he may die seized, upon the heir. It is only by some act on the part of the ancestor, usually by will, that this course of the law will be interrupted or interfered with. Naturally, then, if I may use the word, the land of the ancestor descends to the heir, as it actually exists. If there is to be any change in this natural and ordinary mode it should be made to appear clearly. If it is not so expressed in terms by the ancestor, it should result irresistibly and imperatively from the general intention ascertained from the entire instrument, whether it be deed or will. When not so directly expressed and the intention is being sought, reference should be had to the...
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