Hamilton v. Clarke

14 D.C. 428

• Court: District of Columbia Court of Appeals
• Decided: February 2, 1885
• Docket: No. 9063
• Status: Published

Opinion

Mr. Chief Justice Cartter

delivered the opinion of the court.

In the case of Clarke vs. Boone, we have an application on the part of an executor to be advised as to his powers under the will of his testator to sell certain real estate. And in Hamilton and others against Clarke and others, we have a bill in equity, praying the appointment of trustees to sell the same property, and distribute the proceeds among the devisees.

The court below very properly consolidated the two cases, and they were heard there and .are heard here together.

The value of the matter in dispute is not of very large import in itself. It is agreed that the property should be sold. But the question i s whether it should be sold by the executor, who will be entitled to charge the usual commission for such service or whether the court will appoint certain persons trustees to sell who have signified their willingness to perform the duty without charge to the estate. The first feature of this case which arrests our consideration is that all of the devisees and heirs of this estate unite in asking to be permitted to sell it in their own way and without cost. They state that the beneficiaries are numerous and poor, that the estate is small, and, therefore, ought not to be loaded down with commissions when it can be avoided.

Opposed to this is the remonstrance of the defendant Clarke, who does not claim to have been appointed a trustee specifically and in terms, to make sale of the property, but who claims to have inherited th t rig t under a general grant of trust to him and to an executrix with him jointly, she having expired, and he being her survivor. So that we have the question whether a naked trustee has such a vested interest in the estate of a testator that he can sell it against the wishes of those who own it, and charge the estate with his commissions when others are willing to make the necessary sale without charge.

Unless we are under imperious obligation to support such a trustee in the exercise of such a right, we ought not to do it. It would be doing scarcely less than committing a waste on-an estate that could not afford it, and paying a man for performing a service, the gratuitous performance of which is tendered by others who are concurred with by all those •who are interested in the estate.

We think that even if this trust was lodged specifically in this trustee jointly with another of whom he is the survivor, still it would be in the power of the devisees of this estate to say: “We do not need you; you were appointed trustee to sell this estate, provided, always, that we want you; that is the only office .conferred upon you, and we assume tbe right as owners of this property, to say we do not want you to take a commission out of it. We can sell it without your assistance.”

And unless the court were compelled to do otherwise, as it might be by the specific language of the will, it will say to him: “ The owners of this property have a right to determine whether you shall sell it or not. Yóu are appointed in he interest (f the estate — not to devour it or to sell it against the will of those who own it.”

Let us examine the defendant’s position. He.sets forth in his petition that he is the survivor of Jane E. Boone for the purposes of the execution of this will, and as such survivor he says he has a right, as a sole trustee, to proceed to sell the property. But is he such a survivor at all?

There was a joint trust created in the first - clause of this wall to these two executors. It provides:

■ “It is my will and I do order that all my just debts and funeral expenses be duly paid and satisfied; as soon as conveniently can be after my decease, out of the first moneys that shall come into the hands of my executors, from so much of my personal estate as may be necessary to meet and fully discharge the same.”

And again in the last clause is the following:

“I hereby appoint my loving wife, Jane E. Boone, and my trusty and well beloved friend, Eichard H. Clarke, executors of this my last wilf and testament.”

These trustees proceeded to execute this trust jointlyl •They collected all the personal assets and paid all the debts, distributed the surplus to the devisees and finally settled their account; and then the defendant went to New York, and forgot that he was any longer a trustee until the death of his co-trustee, when he was written to, and he soon discovered that it might be possible to make a commission out of this estate, for there could not be any other motive in-his' desire to act as the salesman of it.

Now, when these two trustees had settled their joint account in which they were charged with-a joint duty under this will, we hold that their connection with it ceased under the terms of the will. I, myself, was not of that impression when the argument was proceeding at bar, for the case was discussed upon the hypothesis that the defendant Clarke was a surviving trustee. But it will be seen, as we proceed with the examination of this will, that he was no survivor of any trustee. ' The will. outlives this joint trust, as will be seen by its terms. ,

. “ Item 2d. I give and bequeath to my beloved wife, Jane E. Boone, in addition to her right of dower at common law, all my personal property of every kind and description whatsoever and wheresoever situated, after the payment of my just debts and funeral expenses, during her natural life, to use, enjoy and dispose of the same, and at her death to dispose of the same as. she may deem fit and proper.”

By that clause he disposed of his estafe absolutely to his wife.

He proceeds—

“Item. I give and devise to my said loving wife, Jane E. Boone, all my real estate, being part of lot numbered 15 in square 341, with the buildings thereon; and also the brick house and lot in.square No. 348, all being and lying in the city of Washington, D. C., for and during her natural life, to have, use and enjoy the same; and, at her death, it is my will that the sum of $300 shall he paid to my beloved nephew, Alexander Hamilton.”

Hamilton is one of the complainants in the hill, and is the only legatee, except the residuary legatees, denominated in the will. If he were not here, and here as a petitioner, we might have some trouble about it. But he is here asking the court to dispense with this trustee and his commissions.

Again, and it is under this clause of the will that the controversy before us chiefly arises—

“Item. It is my will, and I direct, that at the death of my said wife, Jane E. Boone, all my real estate as herein devised shall be sold, and, after paying the legacy above mentioned to my said nephew, Alexander Hamilton, or to his heirs, the residue to be divided into two equal parts or moieties, the one-lialf or moiety to he equally divided between my brothers, Sylvester Boone, Edward D. Boone, and my sisters, Mary Hose Bowling and Sarah N. Hamilton each to have equal shares, and in case of the death of either of them, then to the heirs of said deceased in the same proportion.

“ Item. And it is my will that the other half or moiety of the proceeds of my real estate go to the heirs of my said wife after her death, or to such person or persons as she may devise and bequeath the same to.”

Now, that comes very near if it is not quite a fee simple. A life estate is bequeathed to the wife, and upon her death one-half of the remainder to her heirs or to whoever she may appoint by will. It is only the provision directing the sale of the property and the distribution of the proceeds, instead of distributing the corpus, that takes from it, as it seems to me, the character of a fee simple.

Now how do we find this estate. All of the debts of the testator have been paid; all of the assets — personal assets— have been collected; a final settlement has been had, and these executors long ago ceased to act, one of them (the widow) died, and the other removed to New York city. They were charged with a joint trust for the purpose of collecting the debts and assets. The collection of the assets and the payment of the debts has been accomplished and the final settlement had. Is not that a dissolution of this joint trust? How is this executor to survive as a trustee of a joint trust where the subject of the trust is dissolved by the very terms of the will ? For upon her death this estate goes to the heirs of Mrs. Boone, and this surviving trustee, if he could go on at all, would have to go upon half of this estate, and he would have to survive a joint trustee who, under the terms of the will, must be dead before the execution of the trust can take effect.

We think that it was enough to dissolve this trust, as far as it was created a joint trust, when the trustees had settled their account. The widow was not a co-trustee to sell this estate because, by its very terms, it was not to be sold until after her death. Where, then, is there any joint trusteeship of which he is the survivor?

But here is an estate to be sold, and devisees to realize the fruits of the beneficence of their ancestor by will. They all unite and come into a court of equity asking the appointment of trustees to sell — trustees who. are willing to perform the duty without charge — and we are asked to refuse this request because some time in’ the administration of this will Mr. Clarke acted as a joint trustee, which fact he claims gives him the right to sell.and to charge his customary commissions, notwithstanding the protest of every party in interest.

We think the will of the testator puts us under no obligation to keep up the office of this complainant. We think his power as trustee i's exhausted, and that common justice to the heirs of this estate requires that it should be sold as suggested in the bill filed by these parties; and that will be the order of the court, reversing the decree below.

Mr. Justice James said:

I should have been very glad to unite with the court in its decree, but for the opinion I have as to the question of our power. It is very desirable that this estate should be promoted without expense. My doubt turns upon the existence of a minor among the distributees.

The will provided that the personalty should be enjoyed by the wife (not the realty) during her life, and subject to her disposal at her death. The land was to go to her for life, and at her death was to be sold. Nobody is specifically named as having the power of sale, and it is a question of the construction of the will whether Mr. Clarke has that power.

The American courts adopt this method of ascertaining whether a person is authorized to make the sale : They look at the whole will, and if they find that there is to be a sale and a distribution of the money proceeds, they hold that to be an act of administration, and that the person who is to make the distribution is to take the step necessary to do it.

" Now, by this will, when the wife shall die, this estate is to be converted into personalty, and then the pérsonalty is to be distributed, of course, by the executor, and that, I think, implies a power in him to make the sale.

It is said that this was a joint power. There was only one case cited to us which suggested that the power was given to the widow, and that is an English case, where just such a provision as this was made, viz., that there was to be a sale of the real estate and then a conversion into personalty at the death of the wife. But it was the other trust executor that died, and the wife made the sale under the power. It was held that she possessed the power, if she chose to abandon her life estate in the land. Following that decision, we should hold that there was a joint power in this executor and the wife, if she chose to act before her death, and let her life estate go. As a matter of construction, then, I hold, that the power is first, vested in the wife and her co-executor; and if the power is not exercised by them jointly during her life, which could have been done, as I have said, by the abandonment of the life estate, then it is vested in the surviving executor.

Of course it is competent for the parties to whom the distribution of the proceeds of sale was to be made, to say they do not want any sale ; that they will take the realty itself. But I doubt the right to exercise that power in the present case, because one of Cm parties is a minor. A guardian ad litem has no pov, c. He cannot consent for the minor. The others could all ray they would take the land, but they do not propose to take it as such; they are not exercising that power, even if thf mixmr might join with them. They do not propose to sei uO .>• ¡ > • legacy, and instead of taking the proceeds, take the cor^m. They propose to have the very thing done that the will proposed to have done, but they propose to do it themselves, instead of having this executor do it, as the will provides. But I think the will must be followed, if this estate is to be converted into personalty.

Our attention was called to the statute of Maryland of 1185, which says that where there is no person already designated. for this purpose, the court will appoint one. The question first arose, whether that meant somebody specifically named. But the Maryland courts construing their own statutes, say, that if (as a matter of construction) there is an implication from the will that there is a person authorized, then they will not make the appointment. That statute, therefore, does not, in my opinion, apply to this case, because there is a person here whom impliedly the will appoints. It was also said that we have power to administer estates: but that power is a power to administer them according to the will, if there is a will.

My conclusion, then, is based upon these facts: That this is a proposition to convert this realty into personalty, and not a proposition declining to have the conversion made, and to take it as land. The parties insist upon the very thing that the will directs, and if that is to be done, it is to be done as the testator said it should be done. The question is whether he has said so. I construe it that he has, when he says that this sale is to take place after the wife's death. He, by implication, gives the power to the surviving executor, clearly gives it to him, because he is to go right on and distribute the money as a matter of administration, If that is to be done, I think we have no power to change it. I should be very glad if we had, so as to save this charge upon the estate, but I am controlled by the question of our power to do so.