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conferred by the official position) and not as an executor-trustee. The executor is acting, not by authority of the testator's will, but by the authority of the statute of administration which has enlarged the common law powers of administrators and executors. 27
For the purposes of this discussion, wills may be grouped into two general classes, the division being made on the basis of the character of title acquired by the trustee-executor to the testator's real estate. In the first class there is an outright devise in fee of the testator's real estate to the executor who is to sell the same and divide the proceeds arising from the sale in the way the testator may direct. In this type of will no question can arise as to the executor's power to convey the real estate, free of the claims of the testator's heirs, if the will is valid. In the second class of wills, the executor has the naked power of sale only. The legal title to the real property of the testator descends to the heirs. These two types of will need some further consideration since the executor's power to sell and convey the realty is often a matter of nice distinction.
The real estate of which a decedent dies seized descends directly to his heirs or devises, and no title or right of possession or interest therein passes to an executor unless given to him by the will, either expressly or by necessary implication. If a testator by his will simply directs his executor to sell real estate and to apply the proceeds to certain specified purposes, the executor will take a power only; but if there is a devise to the executor to sell and apply the proceeds as directed he will take an estate in the land.28 It is not necessary for the executor to take the fee, that the legal estate should be in terms devised to him. He will take that quantity of interest by the will which the purposes of his trust requires, and if it is necessary that he should have the fee to enable him to execute the trust, it will be held to have been devised to him by implica
Thus if an executor is required to let real estate and collect 27. It is believed the court would similarly interpret Sec. 112 Ch. 3 of the Illinois Statute in Gross v. Estate of Thornson 286 I11. 185, the converse of the administrator's right to sell the intestate's partly paid for lands, namely, the administrator's right to complete the purchase of the partly paid for lands, was passed upon in the affirmative by the court. In this case the intestate owed money on a promissory note given for the purchase of land. The estate was solvent. Quoting, “If a decedent held a contract for the purchase of real estate, the payment of which was incomplete, and left minors heirs though his estate might be perfectly solvent and able to complete the payments on the contract without prejudice to the creditors, yet the administrator had no authority to do so. The burden of making the payments would fall entirely on the heirs, whose only means of doing so might be the personal assets of the estate. To meet this situation Sec. 112 was passed. The section merely enlarged the powers of the administrator."
28. West v. Fritz 109 III. 425. 29. Ebey v. Adams 135 111. 80.
and pay over rents for a term of years or for the life of a beneficiary, he will take an estate in the land for years or for life, as the case may be, and if at the expiration of such term he is to sell and convey, his estate will be in fee. 30
According in Olcott v. Tope, where the executor was to collect the rents of the testator's farm and at the expiration of the term for which the farm was leased either to lease it again or sell it, in accordance with his judgment, it was decided that the executor took the fee. The rule that the estate of a trustee in real estate is commensurate with the powers conferred by the trust and the purposes to be affected by it was applied, and it was held that the executor being authorized to sell or lease, at his discretion, was vested with the fee for the purposes of the trust. 31
In another case the testator appointed his wife executrix, and provided that the land of which the testator died seized was to be rented and eventually sold to produce a trust fund. The court stated and applied the same doctrine that where a person is named in a will to carry out its provisions, and he cannot carry out those requirements unless he holds legal title, he will be held by implication to have such title.32
An executor was directed to reduce and convert into cash all the property of a testator, both real and personal, to sell the same, at public or private sale, in his discretion, and to complete the collecting, sale, and distribution within a period of five years. He was given general charge of the estate to the same extent as if he were the owner, and the right of certain heirs at law to shares of the farm lands and profits of the same was denied on the ground that the authority given to the executor amounted by implication to a devise of the real estate to him.33
There may be a direct and specific devise to an executor where he is not required to perform any duty respecting the estate, and where another is to have the rents and profits. In such a case the executor will take no legal estate, but the legal estate will pass to the beneficiary. That was the conclusion in Drake v. Steel.34 In the Drake case the will provided that the entire estate after the payment of certain items therein mentioned should be held by the executor in trust for the maintenance of the widow and children of the testator, and at the death or remarriage of the widow the estate was to be divided equally among the four children. It was held the executor took only a power of sale.
30. 249 Ill. 538. 31. 213 Ill. 134. 32. Kemmer v. Kemmer 235 Ill. 337. 33. Fenton v. Hall 235 I11. 552.
In another case an executrix was directed to sell the testator's real property, after the death of the testator's widow, who was given an interest in the estate. One B was to receive one thousand dollars on the death of the widow, and the remainder was to be given to A, if A were living; and if A were not living then to C. The court stated
"Where real estate is directed to be sold and converted into money, after the happening of a certain contingency, and no disposition is made of such real estate in the meantime, the legal title will devolve upon the heirs at law of the testator, subject to sale under the power, at the proper time."36
Quite often the courts will so construe a will where there is no direct devise to the executor as to create a conversion of the lands into personalty.36 There was a devise of lands to alien heirs and the power of sale was conferred upon the executor with no direct devise to him. The court in considering the realty as having been converted into personalty upon the death of the testator stated
"Equity regards that done which ought to be done. If therefore the provisions of the will made it the duty of the executrix to sell the lands and pay over the proceeds to these legatees, equity will regard the conversion of the lands into money as having taken place at the death of the testator, and appellees would take the proceeds as personal prop
The judicial decisions cited in the foregoing paragraph, and numerous other similar cases construing the power of executors to sell and convey a decedent's real estate do not raise the question of the will's validity, but take it for granted the testator was fully, competent and made a valid will. The Indiana courts, on a similar assumption of the will's validity, indicate that the executor's deed will convey a title clear of the claims of the heirs of the testator, though the executor secures no order from the court authorizing the sale. If a will directs the sale of a decedent's land by the executor a sale may be made without an order of court.38
"Where real estate or any interest therein is devised by will the executor shall proceed to dispose of the estate and apply the same according to the provisions of the will.”39 "Where real estate shall have been devised as mentioned in the last preceding section, it shall not be necessary for the executor to file a petition or procure an order of court for the sale of the real estate .. Such sale in the absence of directions in the will may be at public or private sale."40
34. 242 111. 301. 35. Kirkland v. Cox 94 111. 400. 36. 100 Ill. 338. 37. 178 Ill. 387. 38. Clayton v. Blough 93 Ind. 85; Bailey v. Rinker 146 Ind. 129. 39. Burns Ind. Rev. St. Sec. 2876.
Under the authority of these sections the Indiana court held that a domestic executor may sell without an order of court. 41
In the case of Munson v. Cole, the testator's will ran
“Investing my said executor with full power under the will to sell and convey all my real estate, or any part thereof, at his own discretion, and without any application to a court of law.” One-half of the estate was devised to the children of a deceased daughter of the testator. The executor duly qualified and more than five years after the will had been probated he purchased the interest of the widow for the estate and subdivided a portion of the real estate which was sold to various parties. The widow had been given a mortgage on all the lands of the testator to secure her money as vendor. She released the mortgage on the particular portion of land which was subdivided, but never had received any proceeds from the executor. Suit was instituted to foreclose the mortgage against the subdivision purchasers. It was decided the power to sell the real estate in question was conferred on the executor, as executor, and not as trustee; and that by such sale the title of the devisees was divested, and the mortgage ceased to be a lien upon the land.42
Occasionally more than one executor is empowered to dispose of the decedent's realty by the terms of the will. The statute of Henry VIII enacted in 1529 made sales of land by part of several executors valid where part of the executors refused to act.48 Illinois and Indiana, in substance, have adopted this section of the English statute on co-executors.
"In all cases where power is given in any will to sell and dispose of any real estate or interest therein, and the same is sold and disposed of in the manner and by the persons appointed in such will, the sale shall be good and valid; and where one or more executors shall fail or refuse to qualify, or depart this life, before such sales are made, the survivor or survivors shall have the same power and their sales shall be good and valid as if they all joined in such sale." In case of a devise to executors, one may sell if the others refuse, and "all such
40. Burns Ind. Rev. St. Sec. 2877. 41. Davis v. Hoover 112 Ind. 423. 42. 98 Ind. 502. 43. (1529) Statute 21 Henry VIII Ch. 4. 44. (1921) Cahill 111. Rev. St. Ch. 3 sec. 98.
sales made by the executor or executors who shall take upon him or them the execution of such will shall be equally valid as if the other executor or executors had joined in such sale."45
In an Illinois case where there were three minors the testator directed the three named executors, as soon as possible, after his decease to sell his personal property, "and all the real estate shall be sold by my executors at any time when they shall deem proper for its reasonable value." Nothing was specified as to what should be done with the proceeds arising from the sale. There was enough personalty to pay all debts and expenses of administration. Of the three executors only one qualified. The one who qualified sold the land within two years after the probate of the will. An action in ejectment was brought by one of the heirs against the executor's vendee. The court sustained the executor's sale. The court stated that"the sale by the executor who did accept and qualify was valid, whether the power conferred by the will was a mere naked power or a power coupled with a trust, or whether the power was of a discretionary or mandatory character."'46
Indiana decisions are to the same effect.47
As a means of ascertaining the effect upon an infant's title, of sales of a decedent's realty made in accordance with the authority conferred by a will, one may examine the effects of guardians' sales of the real estate of minors and those who are non compos mentis. In this phase of the subject, one may eliminate the transactions of a testamentary guardian.
The guardian's authority to sell is more restricted than that of the executor, in one aspect, inasmuch as the former is always required to petition the court for an order of sale, while the latter is not.
"On the petition of the guardian the county court the sale of the real estate of the ward, or of the right to mine from the land of the ward, for his support, and education, when the court shall deem it necessary, or to invest the proceeds in other real estate, or for the purpose of otherwise investing the same.' "It shall be the duty of the guardian making such sales, as soon as may be possible, to make return of such sale to the court granting the order, which, if approved, shall be recorded, and shall vest in the purchaser
all the interest of the ward in the estate sold.”49
45. Burns Ind. Rev. St. Sec. 2878.