Lucas v. Tucker

• Decision Date: 26 November 1861
• Citation: Lucas v. Tucker, 17 Ind. 41 (Ind. 1861)
• Parties: Lucas v. Tucker
• Court: Indiana Supreme Court

17 Ind. 41

Lucas v. Tucker

Supreme Court of Indiana

November 26, 1861

APPEAL from the Laporte Circuit Court.

The judgment is reversed, with costs.Cause remanded.

John B Niles and Henry T. Niles, for the appellant.

James Bradley and D. J. Woodward, for the appellee.

OPINION

Hanna J.

On January 1, 1843, Francis Lucas, a resident of Ohio, died there testate, the owner of lands in Indiana.In May, 1843, his will was admitted to probate in the county where he died, and the executors therein named, Stokes and Crane, gave bond, &c., and letters were issued to them.On October 2, 1843, they caused a copy of the will and probate to be recorded in the recorder's office of Laporte county, where the lands in dispute are situated.

After certain bequests, &c., the will contains this clause:

"14th.My will is that my executors shall, and they are hereby empowered to, sell lands in the State of Indiana of mine, or so much as is required to pay my debts, and legacies contained in this my last will and testament; and if all my lands in sad State be insufficient to pay my debts, as aforesaid, then my will is, to sell lands of mine in Warren county, Ohio, to make up the balance of money to pay debts as above."

On June 9, 1845, said Stokes and Crane sold, at public auction, and conveyed to Tucker, the lands in controversy, which have been ever since occupied by him.Other lands, it appears, to the amount of 3,500 acres, were also sold.

The will was, perhaps, executed and proved according to the laws then in force in Ohio; this appears to be conceded.

The statute referred to, as authorizing the placing said will &c., upon record in the recorder's office, is the statute of frauds and perjuries, (R. S.1838, pp. 314, 315) which provided, among other things, that a devise of lands should be in writing, signed, attested, &c., be proved &c., and that "proved wills," &c., "devising real estate, or any interest therein, should be admitted to record in like manner as proved conveyances of real estate," &c.

Before the sale in question, the Revised Statutes of 1843 were in force, by which, (§§ 257,258,259, p. 533,) it was provided that lands sold under a power in a will should be under the direction of the Court, in like manner as sales for the payment of debts, and subject to appraisement, as if sold on execution.Acts 1843, p. 51.

No order of Court in reference to the sale of said lands was made, nor were they appraised.

The reason for causing the will to be recorded in the recorder's office, we suppose, was that the clause quoted was by the executors construed to be a bequest of lands, or the creation of a trust or interest therein, instead of a mere power to sell.We do not deem it necessary to decide whether this case fell within the statute authorizing such act of recording, for even if it did, we are not able to perceive any benefit arising from that act alone; indeed, if we understand the brief of appellee, it is therein admitted that the proceedings of the executors were irregular, and the sale erroneous; but it is insisted that such irregularities and errors are cured, and the sale rendered valid, by certain statutes since enacted.

On January 28, 1847, a statute was approved to "amend the practice in the Probate Court," by which, among other things, it was enacted "that all the sales heretofore made by executors, in strict conformity with the provisions of any will, be, and the same are hereby, confirmed and made valid."Acts 1847, p. 117.

On February 16, 1848, another statute was approved, entitled "An Act to amend the ninth article of chapter 30, of the Revised Laws of 1843," in which, by § 1, it was enacted that a sale by an executor, under a power in a will, was authorized without a resort to a Court; and, § 2, "That all sales heretofore made by executors, or administrators with the will annexed, made in accordance with the power given in any will, are hereby confirmed."Acts 1848, p. 10.

Chapter 30, referred to, contains, among other matters, minute provisions as to the production and authentication of, and manner of proceeding upon, foreign wills, or those made and proved in another State.The substance of these enactments is, that if such will is proved and certified in the manner therein designated, and if upon its production to the Probate Court of a county in which there is any estate "upon which said will may operate, said Court shall be satisfied that the instrument ought to be allowed," &c., the same shall be filed and recorded by the clerk, and shall have the same force and effect as if it had been originally admitted to probate in this State; that letters shall then be issued thereon, and further proceedings had, as in cases originally arising in this State; but that the same shall not be construed as making valid any will, &c., that is not executed, attested and subscribed, in the manner prescribed by the laws of this State, (R. S. 1843, §§ 47, 48, 49, 50, 51, p. 495,) and that the Courts of this State shall have the same jurisdiction, as to filling vacancies, requiring sureties, &c., as to wills in this State.§ 444.And said executors shall be subject to the same liabilities, actions and provisions of law &c. § 443, p. 569.

These various acts are referred to, because upon them arises a question preliminary to the main one discussed, as to the power of the Legislature to cure such defects as those arising in this case.That question is, whether the vendors of this land are in a condition to avail themselves of the advantages, if any, of these curative statutes.In other words, could they in any sense be considered as executors, so far as their acts in this State were concerned, unless they had, at least substantially, complied with these statutes, by the production of the will to the proper Court, procuring an order of Court, causing it to be filed and recorded, and letters to issue thereon, and an order as to security, &c.R. S. 1843, §§ 266, 267, 268, p. 534.As they entirely failed to comply with these statutes in any respect, were not their acts those of individuals, and not performed in a fiduciary capacity?Did the Legislature, in these amendments of a curative nature, have reference to persons who had been professing and attempting to act under our laws; or did they have in view, as well, the proceedings of those who may have come from abroad and acted without regard to our laws?

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