Harmon v. Smith

• Decision Date: 09 May 1889
• Citation: 38 F. 482
• Parties: HARMON et al. v. SMITH et al.
• Court: U.S. District Court — District of Minnesota

38 F. 482

HARMON et al. v. SMITH et al.

United States Circuit Court, D. Minnesota.

May 9, 1889

On May 16, 1863, George K. Swift, a citizen of the state of Ohio made his last will and testament, as follows:

'Know all men by these presents that I, George K. Swift, of Warren, in the county of Trumbull and state of Ohio, in view of the uncertainty of our abiding time, do make this my last will and testament:

'Item 1. I direct that all my just debts and funeral charges be paid.

'Item 2. I hereby request my executor hereinafter named to provide at his discretion suitable monuments for my deceased parents and their deceased children, including what he may deem proper for myself.

'Item 3. In remembrance of the kindness and attention of my sister J. Rebecca Harmon in time of sickness and trial, and knowing that my sister Maria P. Kirtland is amply provided with all the necessaries of this life, I make the following provision for the rest and residue of my estate: I give and bequeath to my executor and trustee hereinafter named all of my estate, both real and personal, with full power to sell and convey any or all of said estate, and convert the same into money, to fulfill all contracts by me made, release mortgages, compromise and adjust claims that may be due to me, at his discretion, make proper deeds of conveyance for land, and give any acquittance that may be necessary in the settlement of my estate; said executor and trustee to have and to hold all of my estate, both real and personal, in trust for the use and benefit of my sister J. Rebecca Harmon, who I hereby make the sole legatee of my estate. As soon as may be proper in the estimation of my said executor and trustee, I hereby direct him to pay over the avails of my estate, as it may come into his hands from time to time, or he may in final settlement convey to my said legatee all or any part of my real estate unsold, and a receipt from my said legatee for any balance after final settlement shall be a full and sufficient discharge to my said executor and trustee for the same. I do hereby constitute and appoint my uncle, Frederick Kinsman, my executor and trustee, to do and perform all as provided in this my last will and testament. In witness whereof I have hereunto set my hand and seal this 16th day of May, A.D. 1863.

GEORGE K. SWIFT. (Seal.)

'Signed, sealed, and published in presence of us, James Dana and Frederick Kinsman, Jr., who signed our names hereunto in presence of each other.

'JAMES DANA.

'FREDERICK KINSMAN, JR. (U.S. Rev. Stamp.)'

The testator died June 30, 1865, and the will was admitted to probate by the proper court, and Frederick Kinsman, the executor and trustee therein named, duly qualified and accepted the trust.

The testator owned real estate in St. Paul, Minn.; and prior to December 15, 1865, Kinsman having fully complied with the laws of the state of Minnesota, (chapter 16, Laws 1865,) was authorized to execute the will in Minnesota. On February 13, 1868, J. Rebecca Harmon, the sole legatee of Swift's estate, died intestate, leaving surviving her Julian Harmon, her husband, and three minor children,-- Cornelia, born November 10, 1861; Julian D., born July 23, 1863; and Olive R., born March 16, 1865. At the time of her death Kinsman had paid for the monuments, and had on hand a large sum of money belonging to the Swift estate over and above debts. Ten years after the death of Mrs. Harmon, claiming authority under the Swift will, and without an order of court, he sold and conveyed on June 18, 1878, certain city lots in St. Paul, Ramsey county, Minn., including lot 24, block No. 8, Nininger's addition, to the defendant Robert Smith, and executed the deed as executor and trustee of the estate of C. K. Swift. Smith sold to defendant Twohy, and the latter to defendant Dow. The defendant Armstrong is alleged to be interested in the land with Smith. Kinsman died October 16, 1886, and the complainants bring this suit to set aside the deed from Kinsman to Smith, as a cloud upon their title; and those claiming under Smith are made parties defendants, and other relief is prayed. The land in controversy is vacant and unoccupied.

Frank Ford and John W. Pinch, for complainants.

John D. O'Brien, Homer C. Eller, and I. V. D. Heard, for defendants.

NELSON J.,

(after stating the facts as above.) The defendants claim that upon a proper construction of the will the power of sale was not limited to the life-time of Mrs. Harmon, but could be exercised by Kinsman at any time prior to a final distribution of the property to Mrs. Harmon during her life, or afterwards to those succeeding to her rights. It is also claimed that the real estate as well as the personalty was charged with the payment of debts, and when the lots were sold Smith was not bound to inquire whether there were debts which justified a side of real estate, or see to the disposition of the proceeds. It is also urged that the complainants, and each of them, are estopped from bringing this suit for the reason that the sale has been ratified by the acceptance of part of the purchase money. The facts are substantially undisputed, and the cause has been elaborately and ably argued by counsel.

1. The sale cannot be upheld on the theory that the debts were a charge upon the real estate. The debts are not directed to be paid out of any particular fund. The personalty, as appears from the testimony, was ample to discharge all debts and pay for monuments, and it was so applied. The testator manifestly intended that the executor should pay the debts from the personal estate, in the exercise of his duty, as the law required. There was no trust created by the will, or expressed therein, by virtue of which the executor and trustee could accomplish this object. A mere general direction to pay debts is not a charge upon the lands for that purpose, and furnishes no evidence of an intention to charge the real estate. The latest authority found (Balls v. Dampman, 16 Atl.Rep. 16, Md....