Justice v. Soderlund

• Decision Date: 06 December 1916
• Parties: JUSTICE v. SODERLUND et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 320

114 N.E. 623

JUSTICE

v.SODERLUND et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 6, 1916.

Appeal from Superior Court, Middlesex County; John D. McLaughlin, Judge.

Action by Charles H. Justice against N. J. Soderlund and others. From an adverse decree, plaintiff appeals. Affirmed.

Ralph S. Bartlett, of Boston, for appellant.

Arthur W. Blakemore and Herbert A. Horgan, both of Boston, for appellees.

CARROLL, J.

Maria M. Gay, who died June 5, 1911, in the sixteenth clause of her will directed her executors to ‘sell such portion of my estate as may be necessary to pay off the mortgage now thereon, and then to sell such portion as may be necessary to pay the legacies herein made,’ and for this purpose they were authorized ‘to sell at their discretion the whole or any part of said real estate.’ The legacies amounted to $19,500. ‘The mortgages referred to in the will were somewhere about $5,500 or $6,000.’ Her personal estate was inventoried at $8,193.47. The debts, including funeral expenses and taxes, were approximately $5,143.

The testatrix owned a large tract of land in Newton, and the executors acting under the powers in the will, without obtaining a license to sell from the probate court, sold at public auction, in October, 1912, some of the lots into which the tract was divided. The total amount of these sales was $18,176.60. ‘But four parcels were not taken, * * * leaving a little over $10,000 actual money received from the auction sale, which was not enough to pay the mortgages and legacies.’

At this sale of October, 1912, the plaintiff purchased lot No. 18 for $250.25, paying $100 at the time of sale. A quitclaim deed, unsigned, was prepared and sent to the attorney for the plaintiff, describing the land sold as lot No. 27. The form of the deed was objected to on the ground that the executors had no title under the will and could not convey by quitclaim deed, and that a license from the probate court was necessary to make such a sale; but no objection was made to the deed because of the error in describing the number of the lot. Further correspondence passed between one of the executors and the representative of the plaintiff. The last letter was November 2, 1912, when the plaintiff was informed the executors had ready for delivery a deed of lot 27.

The plaintiff entered upon the premises, cultivating the land and setting out shrubs and trees thereon, the executors paying the taxes. The plaintiff made no further effort to secure a deed of the premises. In the latter part of 1915, the executors sold lot 18 to the defendant Soderlund. In November, 1915, the plaintiff brought this bill for the specific performance of the contract of October, 1912, praying that the executor be directed to execute and deliver to him a good and sufficient deed of the lot purchased. In the superior court the bill was dismissed.

By the will of the testatrix the executors were given the power to sell her real estate for the payment of the mortgage and legacies. The evidence shows the sale to have been proper, for this purpose, and no license from the probate court was necessary. It was said by Chief Justice Shaw in Going v. Emery, 16 Pick. 107, 113,26 Am. Dec. 645:

‘Whenever an executor has the power under a will to sell real estate, no license of any court is necessary to, or can give an additional validity to any sale and conveyance which he may make. And it is considered a good reason for refusing such license, that the power already exists.’

See McLaughlin v. Greene, 198 Mass. 153, 83 N. E. 1112, and cases cited.

Allen v. Dean, 148 Mass. 594, 20 N. E. 314, relied on by the plaintiff, is not in conflict with this. In that case authority was given to sell the real estate ‘as the proper and convenient settlement of the estate may require.’ The settlement of the estate meant the settlement of the probate accounts, the payment of debts, legacies, and the charges of administration; and it was held that there was nothing in the will showing the...