Opinion
05-24-1886
PARKER v. ALLEN, Jr., Adm'r, etc., and others.
Mr. Clayton, for complainant. Robert Allen, Jr., (with whom was Mr. Wheeler,) pro se.
Bill for injunction and account.
Mr. Clayton, for complainant.
Robert Allen, Jr., (with whom was Mr. Wheeler,) pro se.
BIRD, V. C. The complainant asks to have the injunction ordered in this case made perpetual, because the advertisements of sale of lands posted and published by R. Allen, Jr., as administrator with the will annexed, did not describe the lands with sufficient certainty. Many other questions were raised in the examination of the witnesses, as appears by the testimony handed up and discussed by counsel, but the complainant's counsel distinctly states that the only ground for the injunction is the imperfections in the notices of sale. Supposing these notices not only to be imperfect, but really deceptive and misleading, ought this court, without something more, to entertain the suit, under the circumstances presented? What are the circumstances? The said administrator, being apprised of debts of the testator more than the personal property would pay, gave notice of an application to the orphans' court for an order to show cause why lands should not be sold to pay debts, according to the provisions of the statute. The complainant had full knowledge of these proceedings. The statute requires the applicant to make a statement of the claims against the estate, that all persons interested may examine them. This was done in this case. One claim was that of the wife of the complainant. To this claim the complainant filed exceptions. This is referred to, to show his full knowledge of the proceedings.
Upon these facts I feel obliged to say that the complainant's claim for relief is one of the most groundless. Why come to this court to correct a matter so simple as the one before me? The advertisement is uncertain or insufficient. Has not the orphans' court power to give directions? The orphans' court has authority, by statute, to order a sale. Isthat the limit of its authority? Can it not direct how the sale shall be conducted from its inception to its close, if need be? Most certainly. It seems quite useless to discuss the proposition. It has the power to confirm the sale. Does not that also make it certain that it has the power to reject or not to confirm the sale? Nothing can be clearer. If it rejects or refuses to approve or confirm, it has the power to order another sale, or the administrator can proceed to make sale again, by advertising and the like.
If I am right thus far in supposing that the orphans' court is clothed with such ample powers, then it follows, I think, beyond ail controversy, that the same court can control any executor or administrator in the character of the advertisements he exhibits or publishes of the proposed sale, not only before he exhibits them, but at any time afterwards, before the sale. Can there be a doubt but that the complainant had the right to present this same case to the orphans' court and ask relief there? Can there be a doubt, had such case been presented, and the court had considered it a proper case for its interference, but that it had the power to order the administrator to show cause why he should not advertise again, and, upon due proof of the insufficiency, to order him, in detail, how to advertise? The unquestioned fact that it has power to withhold its approval from his report of sale of itself completely answers the inquiry.
But this order for sale may safely be likened to an execution upon a judgment at law, or upon a decree in chancery, over which, and the officer to whom it is directed, the court has entire control; and any one interested may at any time within reason invoke the aid of the court to prevent injustice. Then, how clear it is that the complainant in this cause could have presented his case to the orphans' court, and obtained all the help necessary in case the administrator was in the wrong.
I think the injunction ought not to be made perpetual. The orphans' court was and is so constituted that it could take charge of and dispose of such case, and there let it abide unless something special is shown. "To whom jurisdiction is given, to him those things are held to be granted without which jurisdiction cannot be exercised."
But it is urged that the bill ought to be retained, and the estate settled in this court
First, because there is personal property enough to pay all debts. The complainant's view of the case is that there are about $3,000 in the hands of the sheriff, which are the surplus moneys arising from the sale of lands mortgaged by the testator, which the administrator ought to take and apply towards the payment of debts. Let this be examined. The testator gave a mortgage. In his will he gave the lands, so mortgaged, to his wife for life, or during widowhood, and, after her death, to his only child, the complainant, for life, and to his children after his death. He then authorized his executors to sell said lands, "or so much as may be necessary to pay off any incumbrance thereon, or for any other purpose that to them may seem advisable; * * * and in case of the sale of said premises, I direct my executors to invest the net proceeds of such sale infirst bond and mortgage, and to pay the interest arising therefrom to my said wife during her widowhood or natural life, and, at her remarriage or death, to my said son, James H., during his natural life, and at his death to divide the principal sum among the lawful children of my said son." He also said: "I give, devise, and bequeath to my wife, Mary Parker, the residue of my real and personal property absolutely." After the death of the testator, and before letters testamentary were issued to Mr. Allen, said mortgage was foreclosed, and the lands sold; enough being realized from said sale to pay said mortgage, and to leave a surplus of about $3,000. This, it is claimed, the administrator can take, and should have taken, as personal property, to pay the debts with. It does not appear to me that this view can be sustained. I do not see how this fund can be regarded as personal estate. In equity, the proceeds of land so sold are considered land still for the purposes of devolution. In such surplus the widow has her dower, and the heir takes, and not the next of kin.
It would not have been different had the executors, or the administrator with the will annexed, exercised the power to sell, given in the will, to raise money to pay off the mortgage, even though all the land had been sold; for the power in that direction is limited to selling to pay off any incumbrance thereon. In such case, the surplus would have been treated as real estate. But it is said the power to sell for any other purpose that to them may seem advisable is so comprehensive as to justify the administrator in treating the surplus in the sheriff's hands precisely as though the administrator had made the sale himself under such power. This view would seem to be excluded by the terms of the will, however much the court might desire to take the shortest path to accomplish the result wished for. The testator gives his executors power to sell land mortgaged, for the purpose of paying the mortgage. He so declares. He also empowers them to sell for any other purpose that to them may seem advisable; but he does not authorize them to pay debts with the proceeds, but expressly directs them to be invested for his widow, children, and grandchildren. It is said that the testator as distinctly gave all the rest and residue of his real and personal estate to his wife absolutely. Very true; but it was a gift of the rest and residue only. He first ordered his debts and funeral expenses paid; then he disposed of his homestead, with the mortgage on it, as mentioned, and lastly bequeaths all the residuum. I can think of no rule of interpretation that would sustain me in treating the said surplus as personal estate for the purpose of paying debts, or of casting the whole burden upon the land so specifically devised in the first instance, or upon the proceeds, when given to children and grandchildren, in case I should consider such proceeds as personal estate. As the case stands, I can only treat the surplus as land. The administrator has never attempted to exercise the power given him of selling, because the entire fee was lawfully conveyed before he was qualified, and therefore he could not sell. But in this connection it was urged that, under the power given, he could treat this fund as personal estate. A sufficient answer to that is that he has neverdone so. He has left it with the sheriff, whatever may have been his duty to call it in and invest, which is not under judgment now.
Second, because it appears that there is an agreement between the complainant and his wife that he would withdraw his exceptions to her claim against his father's (the testator's) estate if she would make certain conveyances of real estate, which she had hitherto failed or refused to do. The agreement itself is not attacked. There is no pretense that it is not a fair and reasonable adjustment of the adverse claims between the parties. There is no pretense that it cannot be enforced. There is no pretense that wrong or injury will come to any one if it is enforced. Therefore, rather than undo all this that followed from the doing of that, let that be completely done; let that agreement be enforced if necessary. Upon the faith of that agreement the administrator acted. His conduct has been fair and honest. I can find no allegation in the bill, sustained by the faintest shadow of proof, that would justify the court in aiding the complainant in his effort to break faith with the administrator.
Perhaps I ought to add that I am not unmindful of the fact that this is the proper forum to construe wills. But no question of interpretation was presented to the orphans' court. The exceptions filed by the complainant raised no such issue; so that I can discover nothing in the case that requires the interference of this court. If the orphans' court errs in judgment, the parties can be heard again on appeal before the ordinary.
I will advise that the bill be dismissed, with costs to be paid, in the first place, out of the interest in the hands of the administrator due to the complainant, or that may come to his hands, or out of any other estate of the said complainant; and incase that fails, then, in the second place, out of any other funds in the hands of the administrator as such.