Green v. Alden

• Decision Date: 29 November 1898
• Citation: 92 Me. 177,42 A. 358
• Parties: GREEN et al. v. ALDEN.
• Court: Maine Supreme Court

42 A. 358

92 Me. 177

GREEN et al.

v. ALDEN.

Supreme Judicial Court of Maine.

Nov. 29, 1898.

(Official.)

Report from supreme judicial court, Knox county.

Action by John W. Green and others against William G. Alden. Case reported, and judgment for plaintiffs.

Argued before EMERY, HASKELL, WHITEHOUSE, WISWELL, and STROUT, JJ.

E. P. Spofford, for plaintiffs.

J. H. & C. O. Montgomery, for defendant.

WHITEHOUSE, J. This is a writ of entry, in which the demanded premises are represented to be "certain real estate situated in Camden, in this state, containing five and one-half acres, more or less," and more particularly described by metes and bounds.

The plaintiffs derive title to the land through certain mesne conveyances from the devisees thereof in trust, named in the will of William A. Keteltas, of New York. The defendant derives title from the inhabitants of the town of Camden, to whom the land was sold by its treasurer, as the property of William A. Keteltas, for nonpayment of taxes.

In the will of William A. Keteltas, after disposing of his burial plot in Trinity Cemetery, the testator proceeds, in the second item, as follows:

"I give and bequeath, and will and devise, the rest and residue of all and every the estate, real and personal and mixed, whereof I may die seised or possessed, wheresoever and whatsoever, unto my executors hereinafter named, the survivors or survivor of them, or such of them as shall qualify and undertake the burthen of the execution of this my will, in the trusts and upon the confidences nevertheless and for the purposes and effects hereinafter stated, that is to say:

"First. They, my said executors, shall take into possession, care for, and manage my said estate, receive and collect the rents, issues, incomes, and profits thereof, and from time to time invest the same as hereinafter directed." In the eight succeeding items the testator directs the mode of investing and reinvesting the property, specifies the beneficiaries to whom the trustee shall pay the income and principal of the estate, and prescribes the manner in which the trust shall be executed, and then closes as follows:

"Lastly, I nominate and appoint my nephew Eugene M. Keteltas, and Henry W. Clark, husband of my niece Fanny, to be executors of this, my last will and testament; hereby giving and granting unto them, and to the survivors of them, or such of them as may undertake the burthen of the execution of this, my will, full and ample power and authority in law to make, sign, and deliver bonds, mortgages, leases, and conveyances, and mortgage, lease, or sell the whole or any part of my estate, for the purpose of carrying into effect my full intention in this, my last will and testament, expressed."

This will was duly proved and allowed in the surrogate's court of New York, and, the executors therein named having accepted the trust and been duly qualified, letters testamentary were issued to them on the 9th day of February, 1876.

On the 19th day of June, 1883, Eugene M. Keteltas and Henry W. Clark, "as executors of, and trustees under, the last will and testament of Wm. A. Keteltas," sold and conveyed the demanded premises to Mary C. Keteltas, from whom the plaintiffs acquired their title.

The plaintiffs' action was commenced on the 29th day of December, 1896, and on the 7th day of August, 1897, an authenticated copy of the will of William A. Keteltas, and of the probate thereof in New York, was presented to the probate court in the county of Knox, in this state, and duly allowed as the will of William A. Keteltas, and filed and recorded in the probate court of Maine.

Upon this state of facts it is earnestly contended in behalf of the defendant that, inasmuch as these foreign executors never qualified by giving bond in this state, and never received letters testamentary from the probate court of Knox county, they had no control over the property of the testator situated in this state, and no power or authority to execute a conveyance of the demanded premises.

It has been seen, however, that, by the terms of the will of William A. Keteltas, unrestricted power to sell and convey the whole or any part of the estate was expressly given to Eugene M. Keteltas and Henry W. Clark, as donees of a power in trust. It is true that the same persons were named as executors of the will; but the devise of the estate was made to them as trustees, or donees of a trust power, and not as executors. Their authority as trustees had no necessary relation to the office of executor, and might with equal propriety have been conferred upon any others not named as executors. It was a power which, in the absence of any testamentary provision to the contrary, might have been executed by the trustees without the intervention of executors. Conklin v. Egerton, 21 Wend. 429. See, also, Hall v. Bliss, 118 Mass. 559.

In Newton v. Bronson, 13 N. Y. 587, the executor did not hold the fee in trust, but had...