Brown v. Brown

7 Or. 285

• Court: Oregon Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

By the Court,

Kelly, C. J.:

This is a suit to quiet the title to certain lands of which the respondents claim to be the owners in fee-simple. The material facts in the case are substantially as follows: Cyrus Olney, a resident of Clatsop county in his life-time, and at the time of his death, was seised in fee of certain lands in that county, including those described in the complaint. On the eleventh day of December, 1870, he made his last will, which is as follows:

“Last will of Cyrus Olney of Astoria, in the county of Clatsop, state of Oregon:

“ 1. I bequeath and devise all my personal property, and real estate that is capable of being disposed of by will to Jackson Gr. Hustler and Henry S. Aiken, in trust, first, to pay all my debts; and secondly, to hold the residue in perpetuity, for the benefit of the town of Astoria, in the county of Clatsop and state of Oregon.

“2. I appoint the above named trustees to be executors of this will, and request that no bonds be required of them as such executors.

“8. I desire that my executors shall manage my estate, in their discretion, as my representatives.

“Signed and sealed this eleventh day of December, 1870.

“ Cyrus Olney. [seal.] ”

This will was presented by the executors therein named to the probate court of Clatsop county, and duly admitted to probate on the second day of January, 1871, and letters testamentary issued to Hustler and Aiken as executors of the will. At the time of his death the testator was largely indebted, and the executors proceeded to sell portions of the real estate devised to them in trust to pay this indebtedness. In 1871 the lands in controversy were sold by them for this purpose, and conveyed to the respondents by deeds executed by Hustler and Aiken as trustees, and executors of the will of Cyrus Olney, deceased. The sales were made without any order of the probate court, and were never confirmed by that court. In December, 1874, the heirs at law of Olney filed a petition in the probate court of Clatsop county, praying that court to set aside his will on the ground that the testator was not of sound mind when he made-it, and for the further reason that the will created a perpetuity. At the April term, in 1875, of that court, an order was made setting aside the will upon the following grounds: 1. Because it created a perpetuity and was therefore void upon its face; 2. Because Cyrus Olney, at the time said will was executed, was insane and not capable of making a will.

The probate court at the same time revoked the letters testamentary which had previously been issued to Hustler and Aiken. The appellants, who are the heirs at law of Olney, now claiming that they are the owners in fee of the property in dispute, this suit was brought by the respondents to quiet their title to the same.

The defenses set up by the appellants are: 1. The executors had no authority or power to sell the lands devised; 2. The will of Olney created a perpetuity and was therefore void; 3. The sale of the real estate by the executor is void because no order was made by the probate court authorizing it; and the sale was not confirmed by that court; 4. The will of Olney having been declared null and void by the probate court, all sales of property made under it were thereby annulled; 5. Fraud and collusion between Hiram Brown, one of the respondents, and the executors of the will, whereby he purchased part of the property for less than its value.

On the trial of the case it was stipulated by the parties that the insanity of the testator should not be interposed as a defense in this suit. As their first objection to the validity of the sale made by the executors, appellants insist that the will gave them no power to sell the land in controversy. Although not given in express terms, we think the power is clearly implied, and that under the clause which gave them authority to manage the estate of the testator in their discretion, it was his intention that the land should be sold in order to carry into effect the provisions contained in the will. The property was devised, first to pay all debts of the testator. They could not be paid without money, and this could only be obtained by a sale of a portion of his property so left in trust.

Gathered from the whole will we think this was the intention of Judge Olney when he made his will, and it is always the duty of courts to carry into effect the intentions of a testator, unless by doing so it would contravene some policy of the law. No precise form of words is requisite to create a power of sale. Powers are made declarations of trust, and any words, however informal, which show an intention to create such a power will be sufficient for the purpose. Thus trustees will take a power of sale by implication under a trust for the payment of debts; for such a power is necessary to the due execution of the trust. (Hill on Trustees, 471 (marginal); 2Perry on Trusts, sec. 766.)

The next defense interposed by appellants is that the will of Olney created a perpetuity and it is therefore void. It. is true the devise is to the trustees to hold the residue of the testator’s property, after paying his debts, in perpetuity, but it does not necessarily followthat the land was to remain unsold, if in the discretionary powers of the trustees they deemed it best in the management of the trust to sell the land and apply the proceeds to any public improvements needed by the town of Astoria. The property or the proceeds arising from a sale, undoubtedly were intended to be given to that town, and we see no legal objection to the validity of the will on this account. The rule that a trust in perpetuity cannot be created by devise does not apply to cases of this kind. A trust created for charitable or public uses is not subject to the same limitations as those of a private nature, but may continue for an indefinite length of time, or in perpetuity. (1 Perry on Trusts, sec. 384; 2 Dillon on Muni. Corp., sec. 431; Girard, Will Case, 2 ; McDonough Will Case, 15 Id. 367; Philadelphia v. Girard’s Heirs, 45 Pa. 9.)

At tlie time the will was made the charter of the town of Astoria gave it authority to “purchase, hold and receive property, real and personal, within said town, for public buildings, school purposes and town improvements.” Also to “purchase, receive and hold property within and beyond the limits of the town, to be used for burial purposes, and for the reception of persons affected with contagious diseases, and for workhouses and houses of correction, and for the construction of water-works to supply the town with fresh water; and to lease, sell, and dispose of the same for the benefit of the town.” (Act of January 17, 1856, art. 1, sec. 2.)

If the devise had been made directly to the town of Astoria we think it would have been valid in law. It was equally so when devised to Hustler and Aiken, in trust for the benefit of the town.

The third point in the defense is that the sale of the real estate to respondents was void, because no order was made by the probate court authorizing such sale, nor was it confirmed by the court. In support of this view, counsel for appellant refer to section 1223, page 330, of the civil code, which is as follows: “When the testator shall make provision in his will for the sale or disposition of all or any particular portion of his estate, for the payment of funeral charges, expenses of administration, or of claims against the estate, the property so appropriated may be sold or disposed of as directed by the executor, or administrator with the will annexed, -without an order of the court therefor; but he shall be bound to conduct the sale, and make a return thereof in all respects as if it were made by order of the court, unless there are special directions in the will concerning the manner and terms of sale, in which case he shall be governed by such directions in such respects.” This section has reference to cases where the will gives the power of sale to the executor without any interest in the land devised, and in such eases the land belongs to and the title is in the devisee, subject to administration and of course to the supervision and control of the probate court in regard to the confirmation of the sale. In the case under consideration it is altogether different. By the will the legal title to the real estate was vested in the trustees, and they had complete control of it, subject of course to be held accountable to the cestuis que trust• in a court of equity for any abuse of their power. The fee in the land was in them. They had a power coupled with an interest and could sell the property for the payment of the debts without any order of the probate court; nor had that court any authority to confirm or disapprove of any sale over which the law gave it no control. It was so decided by this court in the case of Hogan v. Wyman, 2 Or. 302, and to the same effect in the decision of the supreme court in 49 Cal. 76.

The fourth point relied on by the appellants as a defense is that the will having been declared void by the probate court, the sale of the land to the respondents was thereby annulled. We hold the law to be otherwise. The probate court had exclusive jurisdiction of the subject-matter in regard to the probate of what purported to be the will of Cyrus Olney. It was duly proved to be his will before that court, and letters testamentary were issued thereon, and until these proceedings were annulled the validity of the will could not be collaterally drawn in question by any one, nor by any other court. Administration of the estate under it could be conducted and enforced, as under any other will duly proved. Such being the case all acts done in the due course of administration, while the will remained unannulled, and the letters testamentary were unrevoked, must be held entirely valid. (3 Redfield on Wills, 120; Roderigas v. East River Savings Institution, 63 N. Y. 460;Foulke v. Zimmerman, 14 Wall. 113.)

The only remaining defense interposed by the appellants, is that at the time Hiram Brown, one of the respondents, became a purchaser of the real estate described in the complaint, there was collusion between him and the executors of the will, whereby he purchased the property for less than its value. This defense of fraud in the sale by the executors is confined to the real estate purchased by respondent, Hiram Brown, on the sixth day of November, 1871, for ten thousand dollars. The appellants allege that this sum was far less than its value at the time of the sale, and therefore a presumption of fraud arises from the inadequacy of the price paid for the same. The testimony taken was mainly confined to proving what was the value of block 55 included in that purchase. W. "W. Parker, a witness called by appellants, testified that the lots valued by him separately, were, when his deposition was taken, January, 1878, worth in the aggregate, with the improvements thereon, the sum of thirty-one thousand four hundred dollars, and that eight thousand dollars worth of improvements were put on the property since the sale in 1871. He did not state in his testimony what was the value at the time of sale.

C. A. McGuire, in behalf of appellants, testified that • the present value, January, 1878, of the lots in block 55, with the improvements thereon, was twenty-five to thirty thousand dollars. He was not asked and did not say how much they were worth when sold to respondent, Hiram Brown, but on cross-examination said that the property had appreciated a good deal since the sale.

L. K. Warren, in behalf of appellants, estimated the lots to be worth two thousand dollars each, or fourteen thousand dollars taken together, on the sixth of November, 1871, when they were sold.

John West, as witness for the appellants, testified that the reputed value of the lots in question was then, January, 1878, about eighteen thousand dollars.

This was all the evidence offered by appellants to prove what the lots in that block were worth. The witnesses on behalf of respondents testified as to the value of the lots in block 55 at the time they were sold as follows:

Captain George Havel says they were well worth ten thousand dollars, and that if they had been sold separately they might have brought more, but he was not certain.

John Hobson says they were worth at that time, in his judgment, about eight thousand dollars, and that they were well sold at ten thousand dollars.

Henry Miller says that the cash value was about eight thousand dollars.

J. G. Hustler, one of the executors, says the lots in block 55 sold for ten thousand dollars, and this was, he thinks, a pretty good price.

This is all the evidence before us in regard to the value of the property, and the only witness on behalf of the appellants who testified as to what it was worth when respondent Brown became the purchaser is JD. K. Warren, who places it at two thousand dollars a lot, or fourteen thousand dollars in the aggregate. All the other witnesses of appellants testify as to what the lots and improvements on them were worth in January, 1878, but say nothing about their value in November, 1871. As they have risen considerably in value since then, and additional improvements been put upon the lots, the evidence of these witnesses becomes practically of no value in determining what the lots were really worth when they were purchased by Brown. We must therefore necessarily resort to the testimony of those witnesses who do state what they were worth at the time, and none of them, except Mr. Warren, place it over ten thousand dollars. It is urged by appellants that instead of the whole block being sold entire, the lots should have been sold separately, as they would then have brought in the aggregate a better price. But when we take into consideration the fact that the property was incumbered with two mortgages to the state of Oregon and one to John West, given by the testator in his life-time, and which amounted at the time of sale, with interest, to five thousand eight hundred and thirteen dollars; it may be questionable whether a better price could have been obtained by selling them separately. The surviving executor, J. G. Hustler, testifies that the sale to Brown was fair and without any collusion with him; and, taking the whole testimony together, we find nothing to contradict his statement, nor to establish the charge of fraud. We consider that there was no error in the proceedings of the court below, and its decree is affirmed.