Porterfield v. Porterfield

Briscoe, J., delivered the opinion of the Court. This case involves the construction of certain clauses of the last will and testament of , Helen O. Porterfield, of Berkeley County, West Virginia. There is a single question presented by the record, and that is, whether Joseph L. Porterfield, the executor named in the will, had authority to make sale of the real estate devised in trust, by the fourth clause of the will, under the provisions of sec. 282, Art. 93 of the Code. It is admitted that the will confers no express power of sale, but the appellees contend that the power arises by necessary implication of law.

By the second clause of the will the testatrix gave, devised and bequeathed all the rest and residue of her estate, real, personal and mixed, to all her children in fee-simple, to be divided among them share and share alike, subject to the third and fourth clauses of her will. The fourth clause, and the one upon which the decision of this case depends, is in these words : “I do hereby will, bequeath and devise to my son, Milton W. Porterfield, of Washington County, in the State of Maryland, my farm, known as the “Moler” farm, lying along the Williamsport and Hagerstown Turnpike Road, in the county and State last aforesaid, to be by him held in trust, however, for all my children, including himself, for the period of seven (7) years from the date of the probate of this my will; provided, however, the said farm may be sold or divided between or among all my said children share and share alike at any time within the said period of seven (7) years, if a majority of all my children then living may so elect. My purpose in this provision of this my will is to prevent a sale or division of my said “ Moler” farm until the end of said period of seven (7) years, or until a favorable opportunity for the sale or division of said farm may occur at any time within said seven-year period that may be satisfactory to a majority of my then living children.” By the sixth clause she appointed her son, Joseph L. Porterfield, executor, and requested that neither her exec ⁶⁶⁵ utor nor Milton W. Porterfield, whom she had named as trustee, should be required to give bond. The remaining clauses of the will relate to certain special devises and bequests, but do not throw any light upon the question here presented.

It appears from the record that on the 22nd of January, 1897, letters testamentary on the estate were granted to the executor named in the will, and upon his application to the Orphans’ Court of Washington County, an order was procured directing a sale of this property under the fourth clause of the will. There was filed with the application the