Harding's Adm'r v. Weisiger

• Decision Date: 23 April 1908
• Citation: 109 S.W. 890
• Parties: HARDING'S ADM'R v. WEISIGER.
• Court: Kentucky Court of Appeals

109 S.W. 890

HARDING'S ADM'R v. WEISIGER.

Court of Appeals of Kentucky.

April 23, 1908

Appeal from Circuit Court, Boyle County.

"Not to be officially reported."

Action by Samuel Harding's administrator against M. G. Weisiger on notes given for the purchase price of land, and to enforce a lien on the land sold. From an order sustaining a demurrer to the reply and dismissing the action, plaintiff appeals. Reversed and remanded.

Robert Harding and C. H. Rodes, for appellant.

M. C Saufley and Breckinridge & Breckinridge, for appellee.

NUNN J.

In the year 1894 Samuel Harding, a resident of Boyle county, Ky made and executed his will and appointed his wife, Lucy W Harding, as executrix thereof, with full power to sell and convey any and all of his real estate. Harding died in January, 1903. The will was probated, but Lucy W. Harding failed to qualify as executrix, and appellant, J. L. Bruce was appointed by the county court administrator of the estate with the will annexed. In the month of January, 1904, appellant, after due advertisement, sold at public sale many pieces of property belonging to Samuel Harding's estate, and appellee, Weisiger, purchased at the sale 21 parcels of the property upon the following terms: One-third in cash, one-third payable in six months, and the balance in 12 months, with interest at 6 per cent. on the deferred payments from the date of the sale until paid. A few days after the sale appellee directed a written communication to appellant, stating that he had been advised that he (appellant) did not have the power to convey to him a good title to the property purchased by him, and requested appellant to make and present to him a deed signed by the devisees under the will of Samuel Harding, and then named all the devisees, their wives or husbands, except Lucy W. Harding, who was a sister of appellee. Appellant made and executed a deed as requested, which appellee accepted, made the cash payment, and executed his notes for the deferred payments, and afterwards paid the notes due in six months, but refused to pay the last notes, upon which appellant instituted this action, seeking a judgment thereon against appellee, and to enforce the lien upon the 21 parcels of land. Appellee answered, denying appellant's right to prosecute the action and his authority under the will to sell and convey the property, first, for the reason that the will did not give him power to sell; second, because he had instituted an action in the Boyle circuit court before the sale of the property for a settlement of Harding's estate, and this action was pending and undetermined at the time the sale of the property was made, which had the effect to divest him of the right to make the sale, even if such power was conferred by the will, and that the pendency of the action to settle the estate placed the power to sell the property exclusively with the court in that action; and further pleaded that the question of the power of appellant to make this sale and conveyance was settled by the judgment of the court in the action referred to settle the estate. Appellant filed a reply to this answer controverting it, and set up matters occurring in the settlement action tending to show the court and all the parties, especially Lucy W. Harding, did not regard the judgment as effective and binding, and waived all rights, if any they had, thereunder. To this reply the court sustained a demurrer and dismissed appellant's action.

Harding acknowledged in his will an indebtedness to his wife of $13,000, which he directed to be paid to her, and then devised to her one-third of all the remainder of his estate, after the payment of his debts, and then gave to her the other two-thirds during her natural life, with remainder to his brothers and sisters or their descendants. The third item of the will is as follows: "I appoint my wife, Lucy W. Harding, executrix of this my will and invest her with full power to sell and convey any and all of my real and personal estate as she may think best."

Appellee's counsel contends that appellant had no power to sell and convey this property under the will, and quotes sections 3888 and 3892 of the statutes, and argues that, as Mrs. Lucy Harding never qualified as executrix of the will, there was never an executor of the will; that no one as executor ever undertook to execute the will; that no one ever died in the office of executor of the will, or vacated the office; that there must have been an executor before the power of sale conferred by the will passed to an administrator. We cannot agree to this. Counsel has overlooked section 3891 of the statutes, which is as follows: "If there be no executor appointed by the will, or if the executors therein named die or refuse the executorship, or fail to give bond as required by law, which shall amount to such refusal, the court may grant administration, with the will annexed, to the person who would have been entitled to administration if there had been no will." This section and the succeeding section (3892) gives the administrator with the will annexed all power and authority given in the will to the named executor, and this power is given the administrator with the will annexed, even though he is not appointed by the court as the successor of the executor previously appointed by the court. It is plain that the administrator with the will annexed has all the powers of the executor named in the will, whether that executor qualified or not, if at the time of appointment the office is vacant, whether by failure to qualify, or by...