Rieker v. Kaetz

• Decision Date: 02 March 1918
• Docket Number: 256-1917
• Citation: 69 Pa.Super. 182
• Parties: Rieker v. Kaetz, Appellant
• Court: Pennsylvania Superior Court

69 Pa.Super. 182

Rieker v. Kaetz, Appellant

No. 256-1917

Superior Court of Pennsylvania

March 2, 1918

Submitted November 12, 1917 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Lancaster Co., Aug. T., 1917, No. 14, for plaintiffs on case stated in suit of Frank J. Rieker et al., Executors of Frank A. Rieker, deceased, v. John Kaetz.

Case stated to determine whether plaintiffs had power to execute a valid deed.

Hassler, J., filed the following opinion:

The facts necessary for the proper disposition of this case have been agreed upon by the parties in the form of a case stated. It appears in it that Frank A. Rieker died on August 4, 1907, leaving a will in which he provides, among other things, as follows: " For the purpose of making distribution of my estate as hereinafter provided, I give my said executors, and the survivors or survivor of them, full power and authority, and empower and direct them, to sell, at public or private sale, in their discretion, any or all of my real estate, and execute and deliver good and sufficient deeds therefor to the purchasers thereof. All my real estate to be sold within one year after my decease." The will was duly proven and letters testamentary were granted to the plaintiffs, who are named executors therein.

Among other real estate of which the testator died seized was a house and lot of ground situated on St. Joseph St., in the City of Lancaster, Pa. On March 1, 1917, the plaintiffs sold this house and lot of ground to the defendant for the sum of $ 1,200. A written agreement was made between them on that day to that effect. It was also stipulated in it that the defendant was to pay the said amount on May 25, 1917, and that on the same day the plaintiffs were to convey to him the said house and lot of ground by a good and sufficient title in fee simple. On the day mentioned the plaintiffs tendered a deed to the defendant, who refused to accept it and to pay the purchase-money, giving as his reason, that more than one year having passed since the death of the testator the plaintiffs were without power to make a conveyance. It is admitted that otherwise the title and conveyance are good.

The only question for our consideration, then, is whether the plaintiffs, nine years and nine months after the death of the testator, can exercise the power to sell given in his will, which directs that all of his real estate shall be sold within a year after his death.

Where powers are directed to be exercised within a certain time, the rule of construction is that the limitation as to time is merely directory, and it can be exercised after the time has expired unless it appears that the donor intended that time should be of the essence of the power. The rule is stated in 31 Cyc., 1112, as follows: " Where the donee (of a power) is directed to execute the power within a certain time or at a future time the general rule of construction is that the limitation is directory merely, unless it appears that the donor intended that it should be of the essence of the power. Nor will a provision in the will making legacies payable within a specific time after the testator's death preclude the executors from selling the real estate after the lapse of such time in order to pay unpaid legatees."

In Fredericks v. Kerr, 219 Pa. 365, the testator granted " Unto my executor the term of five years in which to make sale of my estate as aforesaid, using said time as in the judgment of my executor and the family may be deemed best in the interest of my estate." It was held that the power could be exercised after the expiration of the five years. In delivering the opinion of the court Justice Mestrezat says: " The learned judge was clearly right in this interpretation of the testator's will. Power was clearly conferred upon the executor to make sale of the real estate for the purposes named in the will. The rights of the beneficiaries could not be defeated by any act of the executor in failing or neglecting to make the sale within the five years named in the will. There is no provision in the will disposing of the real estate if the executor should not exercise his power to sell within the five years. The manifest purpose of the testator was to prevent a compulsory sale by the executor at the instance of the beneficiaries within five years, and not to deprive the executor of a power of sale after the expiration of that time. Within the five years from the date of the testator's death, the power of the executor was discretionary, made so by the testator doubtless to protect the interests of the estate and to prevent a possible sacrifice of the property. He deemed it prudent that the executor should not be compelled to sell the real estate at an earlier period. Similar provisions are frequently found in wills, and they, in many instances, save the estate from great losses. Unless the view here taken of the clause in question in the testator's will prevails, the plain purpose he had in disposing of his estate will be defeated. He did not intend that such results should follow the failure of his executor in delaying the sale of his real estate a few months after the expiration of five years from his death. We think it clear that the learned judge of the court below properly interpreted the intentions of the testator in holding that a sale by the...