Haggerty v. Lanterman

The Chancellor.

The question presented • for adjudication is, whether, under the provisions of the will of Aaron Haggerty, deceased, the executor has power to sell the real estate of which the testator died seized. - By the will, the testator, *38 after directing that his debts and funeral expenses be paid, gives a legacy to his wife; then gives to his four sons each an equal share of “all” his “estate;” then gives to his daughter Emeline the interest of her equal share of his “property” during her life, and afterwards “to go to her heirs, if she has any, and if not, to her brothers and sisters” ; then gives to his daughter Almira “ an equal share with his sons”; and then gives to his daughter Euphemia “an equal share with the rest; to have the interest of it during her life-time; if she has heirs, to go to them; if she has none, to go to her brothers and sisters.” The will concludes as follows:

“ I appoint my beloved and trusty son, William H. Haggerty, my sole executor of this my last will and testament. My will and wish is to consult the heirs whether it will be best to sell it or otherwise—the homestead property.”

The scheme of the will is an equal division, among his children, of the testator’s entire estate, real and personal, after paying the legacy to his widow; his daughters, however, to have only the interest of their respective shares for life. This scheme not only contemplates a division of all the property, but also the investment of the shares of the daughters, which involves a conversion of the real property into cash. To make the division and the investment are part of the duties of the executor. Jones’s ex’r v. Stiles, 4 C. E. Gr. 324; Parker’s ex’r v. Moore, 10 C. E. Gr. 228; South v. Allen, 5 Mod. 101. To these ends there must be a sale of the real property. 'Where a testator directed that his real and personal estate be sold and divided amongst his sisters, a power to the executors to sell the real estate was implied. Tylden v. Hyde, 2 S. & S. 238. The better opinion at present seems to be, says Judge Redfield, that the mere fact that the avails of real estate, after it is converted into money, is directed to go in such a direction that it will have to pass through the hands of the executor in the form of money, will, by. implication, give a power of sale. 2 Redf. *39 on Wills 124. See, also, Dewey v. Ruggles, 10 C. E. Gr. 35, and Whitehead v. Wilson, 2 Stew. 396 ; Theobald on Wills 234-238; 1 Wms. on Ex’rs 655; Going v. Emery, 16 Pick. 107 . If the executor is directed by the will, or bound by law, to see to the application of the proceeds of the sale, or if the proceeds in the disposition of them are mixed up and blended with the personalty which it' is the duty of the executor to dispose of and pay over, then a power of sale is conferred on the executor by implication. Lippincott’s ex’r v. Lippincott, 4 C. E. Gr. 121, 122. But there is direct evidence in this will of the intention of the testator to give to his executor power to sell his real estate. The language of the concluding clause of the last section, above quoted, distinctly indicates that intention. The testator there expresses his desire that the executor consult with the testator’s other children as to the expediency of selling the homestead property. He desires to respect their wishes on that subject, but the power to sell is not dependent on their consent. He did not intend that the power of sale should be clogged by the necessity of obtaining the consent of all his children. In fact (it may be remarked), all of them except Euphemia are desirous that the executor should sell the property.

There is still another consideration which may be added. The testator’s personal estate, if the amounts due to him from his sons be not included (and some of his sons are unable to pay those debts except out of their shares of his estate), is insufficient to pay his debts. He evidently intended that the debts due him from his sons should be paid by the sons in the distribution of his estate to them under his will, and he intended that his executor should have power to sell his real estate, and that he should do so, unless some arrangement should be made among his children which should render a sale unnecessary.

The language of Chief Justiee Shaw, in Going v. Emery , above cited, is applicable to the will under consideration : “The will is certainly very inartificially drawn, but this circumstance is never held to affect the validity of a will when *40 the meaning of any particular clause, expounded by a consideration of all other parts of the will, can be ascertained with reasonable accuracy. The rule then applies that if a testator, having a fight to dispose of his real estate, directs that to be done by his executor which necessarily implies that the estate is first to be sold, a power is given by this implication to the executor to make such sale and execute the requisite deeds of -conveyance.”