Mr. Justice Carter
delivered the opinion of the court:
This case was submitted to the circuit court on an issue of law made by demurrer to the declaration, accompanied by a stipulation of a fact not contained in the declaration,—that is, that it was necessary to sell the land to pay the testator’s debts. The effect of the stipulation must be regarded as incorporating such fact, in proper form, in the declaration as one of its allegations. We are also of the opinion that the stipulation operated to waive the common counts and to submit the case to the court on the issue raised by the demurrer to the two speciál counts, with said additional allegation that it was necessary to sell the land therein described to pay the debts of said Thomas J. Graybill, deceased. This must be so, because'it is stipulated that the only questions to be determined are, had the defendants power, under the will, to convey the land?—and can the plaintiff recover the money under the facts? Neither the will nor the land is mentioned in the common counts, and the facts referred to in the stipulation are evidently those specially set out and counted on and the additional fact contained in the stipulation. It could hardly be supposed that counsel would submit the cause, on demurrer, to a common money count in the usual form, and from the stipulation it is clear, we think, that these counts were not to be regarded, but that the facts specially alleged, together with the one stipulated; were to be the facts from which the right of recovery was to be determined. We shall therefore not consider further the contention of plaintiff’s counsel that he was entitled to recover under the common counts. The question at issue must be determined by the construction of the testator’s will set out in the special counts.
It appears to be clear from the will that it was the intention of testator that the land in question, with other property, should be charged with the payment of his debts, and whether, by force of the second clause, the land was devised to his wife subject, to the liability of being sold by the executors to pay debts, or by force and effect of the entire will she was bequeathed only the proceeds of the sale of it, and the gift was one of money and not of land, still, in either event, the land, or the proceeds of the sale of it, was or were to be first liable to be applied to the payment of debts; and by force and effect of the stipulation the declaration alleges that it was necessary to sell said land to pay such debts. It is equally clear that the defendants, as executors of the said will, were empowered by it to sell said land and to convert it into money “for the purpose of settling” the testator’s “affairs and turning the proceeds thereof, after paying” such debts, over to Laura E. Graybill, the testator’s wife. After expressly conferring such power the third clause of the will proceeds as follows: “And for this purpose I authorize my said executors above mentioned, or the survivor of them, to execute all the necessary deeds to perfect such sales; and I authorize them to make all such sales on such terms and conditions as they, in their judgment, may deem proper and for the best interests of my estate, except the farm on which Hugh Smith now lives, and as to the said farm I desire my executors not to sell the same until they can get $30 per acre for the same, and until they sell said farm I desire them to rent same to said Hugh Smith on such terms as are fair and reasonable. And I hereby request my wife, Laura E. Graybill, to join my executors, or the survivor of them, in such conveyances, in order to make good and sufficient title thereto; and I authorize all sales of real estate and chattel property to be made without any order of court and at the least expense consistent with good management.”
The land in question is the farm mentioned in the above clause as “the farm on which Hugh Smith now lives,” and, as before appears, the contention of plaintiff is, that said executors had no power to sell the same for less than $30 per acre, and that the sale and conveyance by them to him for $19.50 per acre were void, and that they, having covenanted that they had full power and authority to make said sale and conveyance, were liable in this action to respond to him for the purchase money which he had paid. We think it unnecessary to consider the point made by counsel for the defendants that the provisions of the will appeared from the public records and were a part- of the chain of title, and that any mistake of the defendants as to their power to make the sale and conveyance was a mistake of law and open as well to the knowledge of plaintiff as to that of the defendants, and therefore one on account of which no recovery can be had. The plaintiff relies upon the covenants contained in the deed, and we shall consider only whether, under the conceded facts, the defendants, as süch executors, had the power and authority, under the will, to make said sale and conveyance.
Leaving out, for the moment, the clause which excepts, as plaintiff contends, the “Hugh Smith farm” from the grant of power to the executors to sell and convey upon such terms as they thought best, it cannot be questioned that the executors were fully authorized by the will to sell any and all of the real estate of the testator outside of the State of Alabama, and to make such sale or sales on such terms and conditions as they, in their judgment, might deem proper for the best interests of the estate. Now, the land in question is not by the supposed exception taken out of or" made an exception to the real estate which the executors were authorized to sell, but the most that can be properly claimed is, that a limitation was imposed on the exercise of such power by forbidding its exercise until they could sell the land for $30 per acre. These provisions of the will, including the exception or limitation mentioned, are followed by a clause containing this further provision: “And I authorize all sales of real estate and chattel property to be made without any order of the court and at the least expense consistent with good management.”
We have considered the argument for defendants in error that the supposed exception or limitation only expresses a desire or wish that his executors would not sell the land in controversy until they could get §30 per acre for it; that the words are merely precatory, and do not constitute an absolute qualification of or limitation to the full and express power conferred on the executors.
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Mr. Justice Carter
delivered the opinion of the court:
This case was submitted to the circuit court on an issue of law made by demurrer to the declaration, accompanied by a stipulation of a fact not contained in the declaration,—that is, that it was necessary to sell the land to pay the testator’s debts. The effect of the stipulation must be regarded as incorporating such fact, in proper form, in the declaration as one of its allegations. We are also of the opinion that the stipulation operated to waive the common counts and to submit the case to the court on the issue raised by the demurrer to the two speciál counts, with said additional allegation that it was necessary to sell the land therein described to pay the debts of said Thomas J. Graybill, deceased. This must be so, because'it is stipulated that the only questions to be determined are, had the defendants power, under the will, to convey the land?—and can the plaintiff recover the money under the facts? Neither the will nor the land is mentioned in the common counts, and the facts referred to in the stipulation are evidently those specially set out and counted on and the additional fact contained in the stipulation. It could hardly be supposed that counsel would submit the cause, on demurrer, to a common money count in the usual form, and from the stipulation it is clear, we think, that these counts were not to be regarded, but that the facts specially alleged, together with the one stipulated; were to be the facts from which the right of recovery was to be determined. We shall therefore not consider further the contention of plaintiff’s counsel that he was entitled to recover under the common counts. The question at issue must be determined by the construction of the testator’s will set out in the special counts.
It appears to be clear from the will that it was the intention of testator that the land in question, with other property, should be charged with the payment of his debts, and whether, by force of the second clause, the land was devised to his wife subject, to the liability of being sold by the executors to pay debts, or by force and effect of the entire will she was bequeathed only the proceeds of the sale of it, and the gift was one of money and not of land, still, in either event, the land, or the proceeds of the sale of it, was or were to be first liable to be applied to the payment of debts; and by force and effect of the stipulation the declaration alleges that it was necessary to sell said land to pay such debts. It is equally clear that the defendants, as executors of the said will, were empowered by it to sell said land and to convert it into money “for the purpose of settling” the testator’s “affairs and turning the proceeds thereof, after paying” such debts, over to Laura E. Graybill, the testator’s wife. After expressly conferring such power the third clause of the will proceeds as follows: “And for this purpose I authorize my said executors above mentioned, or the survivor of them, to execute all the necessary deeds to perfect such sales; and I authorize them to make all such sales on such terms and conditions as they, in their judgment, may deem proper and for the best interests of my estate, except the farm on which Hugh Smith now lives, and as to the said farm I desire my executors not to sell the same until they can get $30 per acre for the same, and until they sell said farm I desire them to rent same to said Hugh Smith on such terms as are fair and reasonable. And I hereby request my wife, Laura E. Graybill, to join my executors, or the survivor of them, in such conveyances, in order to make good and sufficient title thereto; and I authorize all sales of real estate and chattel property to be made without any order of court and at the least expense consistent with good management.”
The land in question is the farm mentioned in the above clause as “the farm on which Hugh Smith now lives,” and, as before appears, the contention of plaintiff is, that said executors had no power to sell the same for less than $30 per acre, and that the sale and conveyance by them to him for $19.50 per acre were void, and that they, having covenanted that they had full power and authority to make said sale and conveyance, were liable in this action to respond to him for the purchase money which he had paid. We think it unnecessary to consider the point made by counsel for the defendants that the provisions of the will appeared from the public records and were a part- of the chain of title, and that any mistake of the defendants as to their power to make the sale and conveyance was a mistake of law and open as well to the knowledge of plaintiff as to that of the defendants, and therefore one on account of which no recovery can be had. The plaintiff relies upon the covenants contained in the deed, and we shall consider only whether, under the conceded facts, the defendants, as süch executors, had the power and authority, under the will, to make said sale and conveyance.
Leaving out, for the moment, the clause which excepts, as plaintiff contends, the “Hugh Smith farm” from the grant of power to the executors to sell and convey upon such terms as they thought best, it cannot be questioned that the executors were fully authorized by the will to sell any and all of the real estate of the testator outside of the State of Alabama, and to make such sale or sales on such terms and conditions as they, in their judgment, might deem proper for the best interests of the estate. Now, the land in question is not by the supposed exception taken out of or" made an exception to the real estate which the executors were authorized to sell, but the most that can be properly claimed is, that a limitation was imposed on the exercise of such power by forbidding its exercise until they could sell the land for $30 per acre. These provisions of the will, including the exception or limitation mentioned, are followed by a clause containing this further provision: “And I authorize all sales of real estate and chattel property to be made without any order of the court and at the least expense consistent with good management.”
We have considered the argument for defendants in error that the supposed exception or limitation only expresses a desire or wish that his executors would not sell the land in controversy until they could get §30 per acre for it; that the words are merely precatory, and do not constitute an absolute qualification of or limitation to the full and express power conferred on the executors. Without expressing any opinion on this contention except to say that it is not without much force, we prefer to base the decision to which we have come after a careful consideration of all of the provisions of the will, upon a different ground,—that is, that it was not the intention of the testator that his executors should not sell the land in question, whatever might be the lapse of time, until they could get §30 per acre for it, but having in view the sale of his property, the payment of his debts, the payment of the balance of the proceeds of sales over to his wife and the settlement of his estate,—matters which he had fully committed to his executors and which it was made their duty to attend to with the least expense consistent with good management and as far as practicable without proceedings in court,—and doubtless believing that this land would appreciate in value to the limit fixed within such reasonable time as would enable them to execute the trust with which he had charged them, it was his intention that the sale of this land should be deferred (within such reasonable time for the carrying out of the provisions of the will) until it could be sold for the price named. A careful study of the will to ascertain the testator’s intention inevitably leads to this conclusion, otherwise many other duties fully enjoined on the executors by the will could not be performed by them. This land was by the will charged with the payment of his debts. It was made the duty of the executors to sell it and to pay his debts and to pay the balance of the proceeds to his widow. It is alleged and conceded that it was necessary to sell it to pay his debts. The executors could proceed in but one of two ways,—that is, to sell under the power contained in the will, or institute proceedings in court to have the land sold to pay such debts,— and it must be presumed that the testator knew this, yet he authorized the sale of his real estate, including this land, “without any order of court and at the least expense consistent with good management.” It appears from the allegations of the declaration that the will was probated and letters were issued to the executors on December 15, 1898, and that they waited until June 25, 1898, —nearly five years,—before they made the sale. They could not wait longer, but were compelled to choose between exercising the power of sale and executing their trust then or not at all, for it is conceded it was then necessary to sell the land to pay debts,—and that was a duty which the will required them to perform. Moreover, the widow was made executrix as to the property of the testator in Alabama, and she was empowered to settle with defendants in error, as executors in Illinois, “when,” using the language of the will, “they have fully settled my estate outside the State of Alabama, and receive from them and receipt to them for all money in their bands, after all my debts are fully paid and all the property is sold and converted into money that I have hereinbefore authorized them to sell and convert into cash. In order to more fully explain my wishes in this matter, I desire my wife, Laura E. Graybill, to have all of my property in the State of Alabama, except notes, bonds, stock and such life insurance policies not made payable to her, and all the proceeds of all my-other property after the payment of my debts and expenses of settling my estate, during her widowhood.”
It seems perfectly clear from these provisions of the will and the clear and emphatic manner in which the testator expressed his testamentary intention, that he did not contemplate or intend that the payment of his debts or the final settlement should be delayed or postponed in order that the land in question would appreciate so as to bring $30 per acre. We must conclude from the provisions of the will, and the language in which they are expressed, that the testator intended that his executors should execute their trust and perform the duties imposed on them without unreasonable delay, for the debts were to be paid, and it could not be presumed that he expected his creditors to wait until he could get $30 per acre for the land; and his widow was to receive the balance of the proceeds, to be enjoyed during her widowhood, and was to receive it before settling the estate in Alabama. The effect of the will as to the question at issue is simply this: that the testator failed to fix, in express terms, any limit to the time that he desired the executors to wait for the land to appreciate so as to bring $30 per acre, but left it to be fairly implied, from the entire will, that such time was not to extend beyond the time when it would be necessary to sell it to pay debts or to settle the estate and pay over the proceeds to the widow. As said in Updike v. Tompkins, 100 Ill. 406: “Particular expressions will not control where the whole tenor or purpose of the instrument forbids a literal interpretation of the sjpecific words. Wills, like deeds, contracts and enactments, must be construed according to the intent of the maker, and that must be ascertained from an examination of the instrument and all of its provisions.” It would do violence to the declared objects and purposes of the testator to hold that this land could not be sold, in any event, by the executors until they could get $30 per acre for it.
But the plaintiff in error contends that the land could be sold by order of court to pay debts. It is sufficient to say that the will expressly authorizes the sale without any such order, and makes it the duty of the executors to sell “at the least expense consistent with good management.”
We are of the opinion that the executors had the power and authority, under the will, to make the sale and conveyance, and that the demurrer was properly sustained to each of the special counts of the declaration, for the reason that no cause of action was alleged.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.