Hodgin v. Toler
| Decision Date | 25 October 1886 |
| Parties | HODGIN v. TOLER AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Taylor circuit court.
Action in equity to set aside a deed conveying certain real estate. There was a reference, and the referee made a finding of facts, which he reported to the court, together with his conclusions of law. The defendants filed a motion to confirm the report, and the plaintiff to set it aside, on the grounds that his finding of facts and conclusions of law were erroneous. The former motion was sustained, and the latter overruled. A judgment was entered denying the relief asked by the plaintiff, and she appeals.J. M. St. John and G. B. Haddock, for appellant.
H. H. Arty and Lyman Evans, for appellee.
1. No exceptions were taken by appellant to the findings and conclusions of the referee, or to the overruling of the motion to set aside the report, or to the judgment; and, as the evidence is not in the record, it is said that a trial anew cannot be had, and that, as no exceptions were taken, the erroneous ruling of the referee and court cannot be considered. To this the appellant responds that no exceptions are required in equity causes. Section 2831 of the Code so provides. This has reference to trials anew in this court; but where a party stands upon the ruling on a motion or demurrer, and appeals therefrom, it has been held that he should except to the ruling and assign errors. Powers v. County of O'Brien, 54 Iowa, 501;S. C. 6 N. W. Rep. 720. Nor is it essential that exceptions be taken before the report is signed by the referee. They may be taken by motion filed in court. Edwards v. Cottrell, 43 Iowa, 194;Washington Co. v. Jones, 45 Iowa, 260. In the case at bar there was a trial below on the merits, and, although no exceptions were taken, we think it must be heard and determined in this court as are other equity causes. It is true, because the evidence is not before us, we cannot review the finding of the referee as to the facts, and we are not asked to do so; but, accepting such finding as true, we are authorized and required, we think, to review his conclusions of law which were adopted by the court. It is from the judgment of the court this appeal is taken; and, the facts being found and appearing in the record, appellant can well ask this court to determine whether the conclusions of law adopted by the circuit court are correct.
2. The facts are that the plaintiff is the widow of Robert Hodgin, who died in August, 1880, in the state of Ohio, where he and the plaintiff at that time resided. Robert Hodgin, at the time of his death, owned real and personal property in the state of Ohio, and also certain real estate which is the subject of controversy in this action. The deceased executed a will, which was duly admitted to probate in the state of Ohio, and he thereby devised to the plaintiff, after the payments of his debts, all his “property of every description, real, personal, and mixed,” for and during her natural life. Provision was made in the will for repairing and adorning a lot in a cemetery, and for a family monument. Money was set aside for these purposes. Item 4 of the will provides that, “after the above bequests are fully carried out, I give and bequeath the balance and residue of the estate to certain persons,” and item 5 is in these words: “I do hereby nominate and appoint Ben H. Steele and George Starbuck, or the survivor of them, executors of this, my last will and testament, hereby empowering them, or the survivor of them, to sell at public or private sale all my real estate, of every description, upon such terms of credit or otherwise as they may think proper, and deeds to purchasers to execute, acknowledge, and deliver in fee-simple.” Starbuck failed to qualify as executor, but Steel did, and thereafter resigned the trust, and thereupon Samuel Berry was, by the proper probate court of Ohio, appointed “administrator of the estate of said Robert Hodgin with the will annexed,” and he duly qualified as such. In November, 1881, Berry caused said will to be admitted to probate in Taylor county, Iowa, and on the eighth day of December, 1881, said Berry, as such administrator, conveyed the real estate (in said county belonging to the deceased) to Johnson, Franklin & Co. for a sufficient consideration, and the referee found that there was no fraudulent intent upon the part of any one connected with such purchase and sale. It is insisted that, under the provisions of the will, Berry had the power and authority to make the sale and conveyance he did, and this is the question to be determined.
(1) Counsel for the appellant insist that trust and confidence were reposed in the persons named as executors by the testator, and that the administrator was not invested therewith, and that he did not, by devolution, have the power to sell the real estate unless it became necessary to do so to pay debts or legacies, and that in such case the sale could only be made in pursuance of authority granted by the proper court of this state. It is apparently conceded that the executors could sell at any time during the existence of the life-estate, and convey a fee-simple title. It may be doubtful whether, under a proper construction of the will, this is true; but, as the point is not made by counsel, we shall not stop to discuss it. That a personal trust and confidence was reposed by the testator in the persons named by him as executors we have no doubt. Such trust was not reposed in them as executors, but as individuals, for they, or the survivor of them, were empowered to sell. A large discretion was given them, for the will does not direct that a sale should be made. This was to be determined by the persons named as executors. It was left to their discretion to determine when, for what reason, and the terms and conditions upon which it should be made. There is no pretense the sale and conveyance of the land was made for any purpose connected with the due administration of the estate. The only authority is that given by the will. If, under the power therein conferred, the administrator could not lawfully make the sale and conveyance, then it is invalid. In this state an administrator has no control of the real estate, unless it becomes necessary to sell the same for the payment of debts, and then he must obtain authority to make the sale from the proper court.
In Williams on Executors, (volume 1,) in a note on page 724, it is said: “As a general rule, a...
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