Schlickman v. Dusing

• Decision Date: 14 May 1918
• Parties: SCHLICKMAN ET AL. v. DUSING ET AL. [a1]
• Court: Kentucky Court of Appeals

203 S.W. 295

180 Ky. 506

SCHLICKMAN ET AL. v. DUSING ET AL. ^[a1]

Court of Appeals of Kentucky.

May 14, 1918

Appeal from Circuit Court, Kenton County.

Suit by Norbert Schlickman and others against Herman Dusing and others. Decree dismissing the petition, and complainants appeal. Reversed.

John L Rich and W. E. Tyler, both of Covington, for appellants.

S.D Rouse and H. C. Theissen, both of Covington, for appellees.

CARROLL J.

In 1894 William Schlickman died testate, a resident of Kenton county leaving surviving him the following children: Emma 20 years of age, Henry 18, Leo 16, Clara 13, William 11, Mary 7, Frederick 5, Marguarette 3, and Norbert 2 years of age. In his will he devised his estate to his children share and share alike. He appointed Fred Pieper executor and also guardlan of his infant and unmarried children, all of them being infants and unmarried except Emma who had married John Dorsel; and the fifth clause reads as follows:

"Fifth. I hereby nominate as executor of this my will the said Fred Pieper and ask that he be allowed to qualify and act as such without giving bond and I hereby fully authorize and empower him as my executor to do any and all things concerning my estate that I could do if living, leaving it to his judgment and discretion as to how he shall manage the same or carry on my business and giving to him full power and authority to sell and convey any or all of my real estate when in his judgment it may be desirable to do so, and the devise to my children herein is especially subject to the power thus vested in my said executor that is the devise to them is in no way to be construed as a limitation on the power of said executor to sell and convey by deed said real estate as to carry on said business."

Fred Fieper, who had been nominated executor and guardian and had qualified as such, discharged the duties of these offices until April, 1899, when he resigned, and John H. Dorsel, who had married Emma Schlickman, was appointed administrator of the estate with the will annexed and also guardian of the infant children.

It also appears that the testator and one Daniel Ruttle were the joint owners of some real estate, and after the death of Ruttle, in a suit to settle these estates, this jointly owned land was sold under decree of court, and at the sale made in 1901 John H. Dorsel became the purchaser, and out of assets of the Schlickman estate he paid to the Ruttle heirs their share, one-half of the proceeds of the sale, and in February, 1902, a deed was made by the court to Dorsel conveying the land to him as administrator with the will annexed of William Schlickman. Within a few days after the property had been thus conveyed to Dorsel, he privately sold and conveyed the same to the appellee Dusing for $6,750, with which amount Dorsel charged himself as administrator with the will annexed. After this, John Dorsel, as administrator, settled his accounts in the Kenton county court, and in this settlement was charged with the $6,750. Subsequently he brought a suit in the Kenton circuit court for a settlement of the estate of William Schlickman, and in this suit all of the Schlickman children were made parties and properly brought before the court. This settlement suit progressed to a judgment, and the accounts of Dorsel, as administrator, were finally confirmed by the Kenton circuit court in 1911.

Nothing further was done in respect to any matters connected with the estate until 1915, when this suit was brought by the children of William Schlickman, except Emla, against Dusing to recover the property sold to him by Dorsel and damages for its detention, upon the ground that the sale by Dorsel to Dusing was void, and this being so they were the owners of the property and entitled to its possession. This suit in its beginning was a common-law action in ejectment, but finally got into equity, and a number of issues presented in many amended pleadings were brought into it. Upon submission the lower court dismissed the petition and the children appeal.

It is admitted that Dorsel in 1899 qualified as administrator with the will annexed and as guardian of the infant children of Schlickman; that he purchased the Ruttle-Schlickman real estate heretofore mentioned while he was acting as administrator and guardian, and that it was conveyed to him as administrator with the will annexed; that he paid the Ruttle heirs for their interest in the estate out of money in his hands as administrator of the Schlickman estate; that he sold this real estate in 1902 to Dusing for $6,750; that in August, 1902, he made an ex parte settlement of his accounts as administrator in the Kenton county court, and in this settlement was charged with the proceeds of the real estate received from Dusing; and that these proceeds were subsequently distributed to or accounted for to the Schlickman children. On these facts, it is the contention of the Schlickman children, who brought this suit, that Dorsel purchased and held this land as trustee for their use and benefit; that the children who were infants at the time could not be and were not divested of their title to the land by the sale made to Dusing, although it should be admitted that they subsequently received their share of the proceeds of the sale; that the infant children could not be divested of their title to this land owned by them and held in trust for their use and benefit by Dorsel, except by and through a suit brought in the manner provided in the Civil Code for the sale of infants' real estate, and so the sale made by Dorsel to Dusing was void.

On the other hand, the argument is made in behalf of Dorsel and Dusing, first, that Dorsel, as administrator with the will annexed, had the right, under the power conferred on his executor by the will of Schlickman, to sell the land and pass good title thereto; and, second, that if he did not have this authority, the children of Schlickman who received after their majority their share of the proceeds of the real estate sold to Dusing and retained possession of the same are barred from seeking to recover the real estate, and this upon the ground that after their majority they had the right of election, and having elected to take the proceeds they are now estopped to recover the property itself.

On the question as to the right of Dorsel, as administrator of the will annexed, to sell the property to Dusing, we are of the opinion that he did not have such authority under the will of Schlickman. It is provided in section 3892 of the Kentucky Statutes that:

"An administrator, with the will annexed, shall possess and exercise all power and authority, and shall have the same rights and interest, and be responsible in like manner, as the executors herein named, or any of them."

But it has been frequently held that this statutory provision does not, in all cases, confer upon an administrator with the will annexed all the power and authority confided by a testator to his executor, and that whether an administrator with the will annexed can exercise all the power confided to an executor depends upon the nature of the power confided to the executor and the manner of its execution as described by the testator in delegating the power.

A more extended discussion of this feature of the case seems unnecessary, because it was virtually decided in the case of Schlickman v. Citizens' National Bank, 139 Ky. 268, 129 S.W. 823, 29 L. R. A. (N. S.) 264, where the court had before it for construction the fifth clause of the will here in question, that Dorsel, as administrator with the will annexed, did not have the power confided to the executor. In the opinion in that case, and the authorities therein referred to, there will be found a statement distinguishing the power that an administrator with the will annexed may exercise from those that he may not exercise. In addition to this, it would seem that when Dorsel bought this property at the judicial sale and took the title to himself as administrator, the sale of it thereafter made by him was not a sale made under any supposed authority found in the will of Schlickman, because the sale under the decree took the estate from under the will, and thereafter it could not be subject to its provisions.

Having this view of the matter, we are further of the opinion that Dorsel held this property as trustee for the use and benefit of the Schlickman children, who were the real and beneficial owners of the property. In support of this proposition that is thoroughly well established, the court said, in Charles v. Daniels, 140 Ky. 379, 131 S.W. 42, in considering how Mary Daniels held the title to infants' land bought by her at a time when she was acting as administratrix of the estate in which the land was sold and as guardian of the infants, that:

"Mary Daniels being both the guardian of her infant children and the administratrix of her husband's estate cannot be permitted to buy in the settlement suit which she brought as administratrix, her husband's land and hold it in her own right. It has been often held that a purchase by an administratrix or guardian under such circumstances inures for the benefit of the beneficiaries of the estate, and that the purchaser holds the property as trustee for them." To the same effect is Conrad v. Conrad, 152 Ky. 422, 153 S.W. 740; Clay v. Thomas, 178 Ky. 199, 198 S.W. 762.

It thus appearing that Dorsel held this property as trustee for the use and benefit of the infant children, they could not be divested of their title by a sale made by him, or by a sale made in any other manner than as pointed out in the provision of the Civil Code, §§ 489-498, regulating the sale of real property of persons under disability. It has been so frequently and...