Ganahl v. Ganahl

• Citation: 19 S.W.2d 898,323 Mo. 620
• Decision Date: 06 August 1929
• Docket Number: 28026
• Parties: J. George Ganahl, Appellant, v. Alphonse E. Ganahl and Alphonse E. Ganahl, Administrator of Estate of Fidel Ganahl
• Court: United States State Supreme Court of Missouri

19 S.W.2d 898

323 Mo. 620

J. George Ganahl, Appellant, v. Alphonse E. Ganahl and Alphonse E. Ganahl, Administrator of Estate of Fidel Ganahl

No. 28026

Supreme Court of Missouri

August 6, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Reversed and remanded.

W W. Henderson and J. H. Allen, Jr., for appellant.

(1) The authority to sell contained in the will of deceased is only discretionary and not positive and mandatory. (2) It is firmly settled that the equitable conversion of realty into personalty by power of a direction in a deed or will to sell only takes place where the direction is positive and absolute. In Matter of Tatum, 61 N.Y. 513, 169 N.Y 514; In Matter of Coolidge, 85 A.D. 295, 303; In Matter of Bingham, 127 N.Y. 296; Nagle's Appeal, 1 Harris, 260; Story's Equity Jurisprudence, sec. 1091, chap. 21. (3) In order to work a conversion of real estate into personalty, there must be either a positive direction to sell or an absolute necessity to sell, in order to execute the will. Scholle v. Scholle, 113 N.Y. 261; Scott's Estate, 37 Pa. S.Ct. 198; 13 C. J. 864, sec. 32; Brown v. Wimer, 261 Ill. 543. (4) Where there is no positive direction to sell, but a mere power to sell, partition can be had. Sauerbier's Estate, 202 Pa. St. 187; Neely v. Grauthern, 58 Pa. St. 437; Yerkes v. Yerkes, 200 Pa. St. 423; Thompson v. Hart, 58 A.D. 439; Dana v. Murry, 122 N.Y. 604; Barnard v. Keathley, 230 Mo. 210. (5) Even where there is a mandatory and positive direction to the executor to sell the real estate of the deceased, and the real estate is thereby converted into personalty, the devisees may elect to reconvert it into real estate and take the land and not the proceeds thereof, and this does not require the unanimous action of all the devisees, when such an election will not impair the interest of the others. Turner v. Hines, 297 Mo. 153; DeLashmutt v. Teetor, 261 Mo. 412. (6) A conveyance of the lands by the beneficiaries is evidence of an election to take the land and not the proceeds of the sale thereof, and conveyance may be made by part of the beneficiaries, if the estate is of such a character that the conveyance by one or more of the distributees will not impair the interest of others. Turner v. Hine, 297 Mo. 162; Eby v. Adams, 135 Ill. 80; McDonald v. O'Hara, 144 N.Y. 566. (7) The presumption is against conversion by will, which is a legal fiction introduced on equitable principles to effectuate the intention of the testator. It is only to be resorted to when actually necessary to carry out the testator's purpose. A direction to convert must be positive and the instrument resorted to must decisively fix on the land the quality of money. The direction to sell must be imperative and explicit. In re Marr, 240 Pa. St. 38; Scott's Estate, 37 Pa. S.Ct. 198; Henry v. McClosky, 9 Watts, 145; Boshert v. Evans, 5 Whort. 551. (8) Partition of lands may be had before final settlement of the estate, where the personal property belonging to the estate is more than sufficient to pay all valid demands and claims against the estate. Barnard v. Keathley, 230 Mo. 209; Chrisman v. Divina, 141 Mo. 122; Tanner v. Tanner, 199 Mo.App. 145; Sec. 2006, R. S. 1919. (9) The discretionary power given the executor to sell has expired by the express terms of the will. Certainly five years is ample time to administer upon the estate -- four years longer than allowed by the law in Missouri -- and if not held to be a limitation on this discretionary power to sell, then the executor may hold on until all the Fidel Ganahl children have joined the deceased in the great beyond before making distribution. (10) The primary provision in the will is that the estate should be distributed within five years. Authorizing the executor to sell is the secondary provision, as the distribution is in no way dependent upon the sale of the real estate. The law in Missouri has already made distribution of the real estate located in Missouri. The will provides that the estate may be otherwise disposed of. The law has already disposed of the Missouri real estate. (11) The clause "authorize the executor to sell, lease or otherwise dispose of all or any part of my estate," clearly indicates that it was the intention of the testator to give the executor that power only in the event it became necessary. The will had already devised the real estate to the children. It does not say the real estate should be sold and the proceeds therefrom should be distributed to the legatees and devisees. There could be no purpose or intention in the mind of the testator other than to permit its sale, without order of court, if it became necessary to pay debts and legacies. A will should be construed as a whole. Every clause should be considered in order that the court can arrive at the true intention of the testator. Stewart v. Jones, 219 Mo. 614; Hill v. Hill, 261 Mo. 61. (12) When by a will the power to sell land of the testator is given for a specified purpose, which no longer exists, it is the general rule there is no power thereafter. In the absence of a clearly expressed intention to the contrary. 31 A. L. R. 1405. (13) It is well settled that the power of sale is not inherent in the office of trustee, but he has such powers only as are conferred by the instrument, either expressly or by clear implication. 31 Cyc. 1043-1053; 2 Beach on Trusts & Trustees, sec. 557; 2 Perry on Trusts, secs. 764, 498; Young v. Bradley, 101 U.S. 782. It was not the intention of the testator that the executor must sell all the lands remaining in their hands after the expiration of the five years and divide the proceeds among the beneficiaries named in the will. (Emphasis ours.) Wisdom v. Wilson, 59 Tex. Civ. App. 592; Richardson v. Sharpe, 29 Barb. (N. Y.) 222; Dunshee v. Goldbacher, 56 Barb. (N. Y.) 579; Dwyer v. Dwyer, 231 S.W. 672. (14) In no event does the present suit contravene the provisions of the will. For it does not disturb the relative claims of the respective parties named in the will to their distributive share of the land devised, but effectuates the purpose of the testator. Spratt v. Lawson, 176 Mo. 182; Barnard v. Keathley, 230 Mo. 209; Sikemeier v. Galvin, 124 Mo. 368; Dunshe v. Dunshe, 234 Pa. St. 550; Sauerbier's Estate, 202 Pa. St. 187; Yerkes v. Yerkes, 200 Pa. St. 423.

Alphones E. Ganahl, Pro Se; Gillespie & Dempsey of counsel.

(1) Points of appellant's brief dealing with the doctrine of equitable conversion under a will, are beside the issue before the court, and the assertion of equitable reconversion by choice of less than all in interest of the residuary distributees is contrary to reason and squarely denied by the very authorities which appellant cites as in support thereof. Turner v. Hines, 297 Mo. 153; Eby v. Adams, 135 Ill. 80; McDonald v. O'Hara, 144 N.Y. 566; DeLashmutt v. Teetor, 261 Mo. 412. (2) Partition, before distribution, of the land in suit and public sale thereof by a commissioner appointed by the court, are directly contrary to the intent of the testator expressed in his will set forth in the petition, and for that reason prohibited by the statute. Secs. 2005, 555, R. S. 1919; Cannon v. Cannon, 175 Mo.App. 84; 24 C. J. 156; Hatt v. Rich, 59 N.J.Eq. 492; Larco v. Casanueva, 30 Cal. 560; 20 R. C. L. Partition, sec. 4. The following authorities cited by appellant support the ruling upon the demurrer herein: Hill v. Hill, 261 Mo. 55; Stewart v. Jones, 219 Mo. 614, 641; Barnard v. Keathley, 230 Mo. 209; Spratt v. Lawson, 176 Mo. 175; Sikemeier v. Galvin, 124 Mo. 367. (3) Even if the five-year period "desired" by the testator as an extension of the time allowed his named executor for administering upon the estate be regarded as a limitation upon the powers vested in him by the separate provision for sale, lease or other disposition of the estate, the petition, nevertheless, is subject to demurrer for insufficiency, because it affirmatively shows that when this action was instituted, the executor had not had five years within which to sell the property located in Missouri, where his powers commenced only with issue of letters to him on October 4, 1921. Emmons v. Gordon, 140 Mo. 499; Bank of Seneca v. Morrison, 200 Mo.App. 169; DeLashmutt v. Teetor, 261 Mo. 412. (4) The five-year clause in the will does not refer to nor qualify the preceding separate and distinct grant of power to sell vested in the executor, but refers only to the extra time which the testator wishes the executor to be allowed "within which to administer upon the estate and make distribution thereof;" and the duty and authority of the executor to administer upon the estate and make distribution does not expire even with final settlement, but continues until in fact the estate has been fully administered. 23 C. J. 1091; Wyatt v. Stillman Inst., 303 Mo. 94. If the five-year clause, however, be regarded as applying to the powers of sale and other disposition vested in the executor by the preceding sentence, then the general rule applies that where a will confers on executors or trustees a power of sale and specifies the period of time within which it is to be exercised, the power does not cease because of the failure to exercise it within the time prescribed, and it may be exercised after the expiration of the period in the absence of a clear expression in the will to the contrary; and such is the construction of the will in suit by the courts of the domiciliary jurisdiction. 31 A. L. R. 1395; Kidwell v. Brummagim, 32 Cal. 437; Ensley v. Ensley, 558 S.W. 294, 105 Tenn. 107; 23 C. J. 1092, sec. 251; Bayley v. Sloper's Executors, 160 N.E. 277.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action for partition of real estate. The construction of the will of Fidel Ganahl is...