Opinion
No. 23895.
January 7, 1936. Rehearing Denied February 18, 1936.
(Syllabus.)
1. Executors and Administrators — Invalidity of Mortgage Given by Executrix in Noncompliance With Statute.
A mortgage given by an executrix which does not comply with section 1267, O. S. 1931, is void as to such executrix.
2. Trusts — Will Held to Empower Wife as Trustee to Mortgage Real Estate.
A will which contains the following provisions: "* * * I give my wife the right to manage, control and lease any and all of my property during her natural life or widowhood, with full authority and right to sell and dispose of any portion of my said estate for the purpose of maintenance and education of our said children or for the purpose of reinvesting same, she to be the exclusive judge of the property to be sold and of the necessity for sale, as well as the reinvestment of same, and she is to act independent of the action of any court. * * * I desire and I hereby give my full management and control of my estate with authority to sell and make deed or deeds of conveyance to any part or parts thereof, for the purpose of maintaining herself and our children, and for the purpose of reinvestment and to reinvest same as to her may seem for the best interest of our estate, and I hereby give her full authority to reinvest any part of said estate as to her may seem for the best interest of my estate, so long as she remains a widow, or so long as she may desire to hold the community estate together, she to be the exclusive judge of the necessity to sell, and of the kind of investment to be made," is broad enough to give the trustee power and authority to mortgage the real estate described in said will.
Appeal from Superior Court, Okmulgee County; J.H. Swan, Judge.
Action by the Producers National Bank of Tulsa against Laura Parks and others. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part.
Hagan Gavin, for plaintiff in error.
L.N. Houston, for defendant in error.
This is an action upon a note and mortgage executed by Laura Parks, individually, and as trustee and independent executrix of the estate of O.F. Parks, deceased, in which it is sought to foreclose a mortgage on certain lands in Okmulgee county.
The issues presented on this appeal are identical with those presented in Laura Parks et al. v. Illinois Life Ins. Co., No. 23857, handed down by this court January 7, 1936, 176 Okla. 63, 54 P.2d 392. There is no difference in the facts disclosed by the record in this case and the facts disclosed by the record in case No. 23857.
We therefore adopt the facts and law in that case as the facts and law in this case, and the opinion handed down in case No. 23857 is adopted as the opinion in this case.
OSBORN, V. C. J., and RILEY, BAYLESS, BUSBY, and WELCH. JJ., concur. McNEILL, C. J., and PHELPS and GIBSON, JJ., dissent.