Jones v. Broadbent

• Decision Date: 29 March 1912
• Parties: RALPH EARL JONES and OTTO MURL JONES, Executors of the Estate of WILLIAM JONES, Deceased, Respondents, v. JOHN B. BROADBENT, Appellant
• Court: Idaho Supreme Court

123 P. 476

21 Idaho 555

RALPH EARL JONES and OTTO MURL JONES, Executors of the Estate of WILLIAM JONES, Deceased, Respondents, v. JOHN B. BROADBENT, Appellant

Supreme Court of Idaho

March 29, 1912

CONSTRUCTION OF WILL-EXECUTORS-POWER TO SELL REAL ESTATE-TRUSTEES-TRUST RELATIONS-MARKETABLE TITLE-DISTRIBUTION.

(Syllabus by the court.)

1. The cardinal rule of construction of a will is to ascertain the testator's intent, and such intent is to be ascertained from a full view of everything within the instrument.

2. Where the executors of a will are appointed such by its terms and are also thus appointed trustees of a certain portion of said estate, their duties as executors and trustees are separate, distinct and independent of each other, and until the estate is settled or distributed in whole or part and the executors are discharged, their duties as executors continue as to the part of the estate not distributed, and they do not assume the duties of trustees as to the part not distributed.

3. Under the provisions of said will and the law, it was the duty of the executors to collect outstanding accounts in favor of the estate and pay all indebtedness of the estate and until that was done no distribution of the entire estate could be made; and if in the performance of these duties it was necessary to sell the whole or a part of such estate to pay the indebtedness, the executors had authority to sell and convey a good, marketable title to such property upon confirmation by the probate court.

4. The trustees as such would have no authority to meddle or interfere with the due administration of said estate until such administration had been completed or distribution made.

5. When the same person had been appointed by will to perform some dual duty, such as executor and trustee, in respect to the property of an estate, no service is demanded of him as trustee until he has performed his executorial obligations.

6. A testamentary trustee is not entitled to take possession of and hold the property of the estate for the purpose of trust until the estate has been settled or distribution made.

7. Held, so far as this proceeding is concerned, the power of sale conferred upon the executors was not given them as trustees and it terminated with their discharge as executors.

8. Where trust duties are imposed upon testamentary trustees who are also devisees and legatees as well as executors under the will, such executors cannot act as trustees until there has been a distribution to them of the trust estate.

9. Held, that the executors upon confirmation by the probate court had full authority to sell and convey a good marketable title to the real estate described in the complaint.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

An action to enforce the specific performance of a contract for the sale of real estate. Judgment for the plaintiffs. Affirmed.

Judgment of the trial court affirmed. Costs awarded to the respondents.

Henry Z. Johnson, for Appellant.

Where trust duties were imposed upon testamentary trustees who were also devisees and legatees as well as executors under the will, such executors could not act as trustees until there had been a distribution to them of the trust estate as trustees, and they themselves discharged of their executorial duties. (In re Higgins' Estate, 15 Mont. 474 39 P. 506. 28 L. R. A. 116; Joy v. Elton, 9 N.D. 428, 83 N.W. 875; 2 Church's New Prob. Law & Prac., pp. 1442-1445, citing authorities.)

In construing the provisions of a will to ascertain the meaning of a testator, the cardinal rule of construction is, What was the testator's intent? (Wilson v. Linder, 18 Idaho 446, 138 Am. St. 213, 110 P. 274.)

A. A. Fraser, for Respondents.

The main question in this case is, What was the intention of the testator at the time the will was executed? If it was his intention that the executors should have full power to sell and dispose of any part of the estate and give a good title thereto, notwithstanding the fact that a part of the estate was to be held in trust for one of his sons, then the court will carry out such intention. (Page on Wills, sec. 461.)

Where the same persons are named in a will as executors, and also as trustees, their duties as trustees do not commence until their duties as executors cease. (In re Higgins' Estate, 15 Mont. 474, 39 P. 506, 28 L. R. A. 116; Goad v. Montgomery, 119 Cal. 552, 63 Am. St. 145, 51 P. 681; Dougherty v. Bartlett, 100 Cal. 496, 35 P. 431; In re Roach's Estate, 50 Ore. 179, 92 P. 118.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This suit was brought to enforce the specific performance of a contract for the sale of real estate. It appears from the allegations of the complaint that one William Jones died in Boise City about the 2d of October, 1910, and at the date of his death was possessed of certain real estate situated in Boise City; that said Jones left a will wherein it was provided that two of his sons, who are the plaintiffs here, should be appointed executors of the estate of the deceased; that by the terms of said will the power was granted to the said executors to sell and dispose of any part or the whole of the estate of said deceased at public or private sale and to execute and deliver all deeds, instruments of transfer and other writings necessary to pass the proper title thereto; that said will was admitted to probate by the probate court of Ada county; that in the administration of said estate the said executors on the 15th day of November, 1911, entered into an agreement or contract with the appellant wherein and whereby it was agreed that the plaintiffs would sell to the defendant a certain lot or parcel of land situated in Boise City and convey to the appellant by a good and marketable title said piece or parcel of land for the sum of $ 20,000; that said appellant agreed to purchase said lot and pay that sum therefor; that after entering into said contract the said executors petitioned said probate court for a confirmation of said sale and after due and legal notice of the time and place of hearing such application, the sale was confirmed, there being no objections to such confirmation; that said probate court on January 16, 1912, made and entered an order confirming said sale to the appellant, and thereafter on the 18th day of January, 1912, the said executors tendered to the defendant a good and sufficient deed conveying to him a good, marketable title to said land, but that said defendant then and there refused to accept the same and refused to pay the amount of the purchase price therefor. The executors demanded judgment that the defendant perform his said agreement and be required to pay said sum of $ 20,000 to said executors.

The appellant demurred to said complaint on several grounds and raised the question as to whether or not said executors could sell said lot and convey a good, marketable title thereto. Said demurrer was overruled and the appellant refused to plead further and judgment was entered in favor of the plaintiffs as prayed for in the complaint. This appeal is from that judgment.

Four questions are raised by the demurrer and presented on this appeal, all of which will be answered by answering the question whether said executors have full power and authority to sell and give a good, marketable title to said real estate.

Under the provisions of said will the testator left to his wife that portion only of his estate which was not subject to testamentary...