Wisker v. Rische

• Decision Date: 12 March 1902
• Citation: 167 Mo. 522,67 S.W. 218
• Parties: WISKER et al. v. RISCHE.
• Court: Missouri Supreme Court

67 S.W. 218

167 Mo. 522

WISKER et al. v. RISCHE.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

WILLS — POWER OF SALE — EXECUTOR — ADVICE OF TWO — DEATH OF ONE.

Where testatrix left no personal estate, devised certain real estate specifically, and charged her debts on the residue, which she directed her executor, with the advice and consent of her daughter and son, to sell, and with the proceeds pay her debts, etc., a sale and conveyance by the executor with consent of the daughter after the death of such son, and without an order of the probate court, was authorized, and conveyed a good title to the purchaser as against the heirs and residuary legatees of testatrix, under Rev. St. 1899, § 45, providing that, when a will directs the sale of real estate, the sale shall be made by the executor if no other person is appointed, or if the person appointed refuses to perform the trust, "or die before he shall have completed it."

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Aubrey L. Wisker and others against August Rische. From a judgment for defendant, plaintiffs appeal. Affirmed.

Ejectment for 17/60 of lot 10 of subdivision of Walton estate, in St. Louis county, containing about 90 acres. The petition is in the usual form. The answer is a general denial and equitable defenses. The circuit court entered judgment for the defendant, and the plaintiffs appealed. Charlotte Lay is the common source of title. She died in 1879. The plaintiffs are her grandchildren, being the children of her daughter Charlotte Wisker, who died in 1877. Charlotte Lay left surviving her a son, Henry C. Lay, who died about a month after his mother, a daughter, Henrietta, wife of Henry Dausman, and the plaintiffs, the children of her deceased daughter, Charlotte Wisker. She also had a stepson, John F. Lay, who was living at her death. Mrs. Lay died testate. By her will she disposed of her property as follows: (1) She released the debts her son, Henry C. Lay, owed her; (2) she gave to Henry C. Lay's wife and children about 220 acres of land in Iron county; (3) she gave her daughter Henrietta Dausman the homestead in St. Louis; (4) she gave to George J. Davis, in trust for the plaintiffs, a farm of about 1,000 acres, in Pettis county; (5) she released the debts her stepson, John F. Lay, and his wife owed her; and then she made the following testamentary disposition of the residue of her property, which included the property in controversy here: "Sixth. All the rest, residue, and remainder of my property and estate of every nature and kind whatsoever, after the payment of my just debts, and which property I charge therewith, I hereby authorize and direct my executor hereinafter named, with the advice and consent of my daughter Henrietta R. Dausman and my son, Henry C. Lay, to sell, and to convey to the purchaser or purchasers thereof good title, upon such terms and for such prices as to them shall seem best, and from the proceeds thereof to pay all just debts and liabilities against me; and, if anything shall remain, one-third (1/3) part of such remainder shall be paid to the said Henrietta R. Dausman, and one-third thereof to my son, Henry C. Lay. The remaining one-third thereof shall be paid to the trustees aforesaid, hereinbefore named, of my grandchildren, the children of my daughter Charlotte A. Wisker, to be used by said trustee, at his discretion, in improving the land hereinbefore devised in trust to him, and in educating, clothing, and maintaining said grandchildren and the survivors of them; and, if anything shall remain therefrom, the same is to be divided among said grandchildren as they shall respectively become of age. Seventh. I hereby appoint George J. Davis, of St. Louis, Missouri, the executor of this, my last will and testament." The will was duly probated, and George J. Davis qualified as executor. Mrs. Lay left no personal assets whatever. Debts aggregating several thousand dollars were proved and allowed against her estate. There was no money with which to pay the debts. Thereupon, on the 1st of April, 1882, George J. Davis, without any order of the probate court to sell, but with the consent of Mrs. Henrietta Dausman and her husband, evidenced by their signatures to the deed, and purporting to act under the power conferred by the sixth clause of the will, above set out, sold and conveyed the property in controversy, being a part of the residue specified in the sixth clause of the will, to William Rische, the grantor of the defendant, for $5,967.65. The executor applied those proceeds, under the direction and with the approval of the probate court, to the payment of the allowed claims against the estate and to the payment of taxes on the Iron county land. There was nothing left of such proceeds to devote to improving the Pettis county land devised to him in trust for the plaintiffs, or to the education and maintenance of the plaintiffs. But the plaintiffs have enjoyed and now own the Pettis county land by virtue of their grandmother's will. Henry C. Lay having died in 1879, about a month subsequent to the testatrix, of course he could not join his sister Mrs. Henrietta Dausman in advising and consenting to the sale of the land in controversy by Mr. Davis in 1882.

Thos. B. Crews and Wm. S. Shirk, for appellants. Kidd & Davis, for respondent.

MARSHALL, J. (after stating the facts).

1. The position of the plaintiffs is that the sixth clause of the will simply conferred a power to sell and apply the proceeds upon Mr. Davis, limited by the advice and consent of Henry C. Lay and Henrietta Dausman, and that upon the death of Henry C. Lay this power ceased, and therefore the sale by Davis to defendant's grantor is void, and, the power having ceased, the residue of the estate of Charlotte Lay descended to her heirs; and that, if there was no money or personalty with which to pay the debts of the estate, the necessary funds could only be raised by having the probate court order a sale of the real property. In England, and in some of the American cases, the courts literally and strictly construed powers to sell real estate, and it was generally held that the power must be executed exactly in the manner and by the exact persons upon whom it was conferred, and that the slightest failure to comply with the letter of the power vitiated the grant. Thus, if the power to sell was given to three persons (e. g., executors, etc.) eo nominatim, and one died, the power ceased, but, if the power was given to three of a class (e. g., executors), and one died, the two remaining could act, because they filled the plural number constituting the designated class; but, if two of the class died, the survivor could not act, and the power ceased. 1 Sugd. Powers, p. 204 et seq.; 4 Kent, Comm. (14th Ed.) p. *333; 1 Perry, Trusts (5th Ed.) § 294; Hamilton v. Building Co., 20 Hun, 88; Powles v. Jordon, 62 Md. 499; Kissam v. Dierkes, 49 N. Y. 602. Washb. Real Prop. (5th Ed.) p. 716, thus states the rule: "In the case of executors, moreover, this nice distinction is recognized and prevails: That, if the devise is to them to sell the estate, or for it to be sold, they take a trust of the estate with a power to sell; whereas, if the devise is that the executors shall sell, it is a naked power, and must be executed by all; while in the other case it is not a naked power, and may be executed by such of the executors as execute the will. If a power is given by will to a trustee, and he neglects to...