Seldner v. McCreery

Bryan, J., delivered the opinion of the Court. Certain real estate Avas sold by the executors of Eva Seldner, deceased, under a power of sale given to them ²⁹¹ by her will. The purchaser alleged that the title was defective and refused to accept and pay for the land. A bill in equity was filed by the executors for a specific performance of the contract of sale, and the Court passed a pro forma decree dismissing the bill, with costs.

The executors, have taken this appeal. The principal question is whether the title of the property sold is such as a purchaser ought to be required to take. Tlie important facts affecting the title are as follows: In 1825, Thomas Wilson being seised in fee of the property in question leased it for ninety-nine years, renewable forever, to Gerard T. Hopkins. In February, 1830, the unexpired term was conveyed to the executors of Bernard J. Yon Kapff, subject to the ground rent, and upon certain trusts which will hereafter be more particularly mentioned.

In March, 1830, the executors of Yon Kapff sold this leasehold to William Norris, and executed a bond of conveyance, binding themselves to convey the title to him when he should pay the purchase money in full. In June, 1833, they conveyed the title to his executor by a deed, which recited that the purchase money had been paid in full. By due conveyances (which it is not necessary now to mention in detail,) this leasehold having been merged in the reversion expectant on it, the whole fee was conveyed to Florence Bailey, and she on the same day conveyed the fee to Eva Seld-r ner, who was then the wife of Lewis Seldner. On the ■same day Seldner and wife conveyed to trustees for Florence Bailey another lot of ground, by a deed which recited that it had been agreed that it should be accepted from Lewis Seldner at a valuation of $15,000 in part payment of the purchase money of the lot conveyed to Mrs. Seldner.

Lewis Seldner died in 1881, leaving a will in which he made Mrs. Seldner sole legatee for life, • and made her and one of his sons executors. We will consider the objections whic'h have been made to this title. It is maintained that the leasehold was ²⁹² not validly conveyed to the executor of William Norris hy Yon Kapff’s executors. We find the following clause in his will: “I desire that my executors hereinafter named, or the survivors or survivor of them, may sell and dispose of my houses, lands and real estate whenever they judge it to the advantage of my children. * * * * The proceeds of the above said property is to be invested in safe and productive stocks or funds; or lent out on mortgage of undoubted sécurity for the benefit of my children.” The, property was conveyed to the executors of Yon Kapff on the following trust: c‘In trust for the uses and purposes and under and subject to the powers expressed, limited and declared in and by the last will of Bernard J. Yon Kapff, in relation to the proceeds of those portions of his estate, a sale whereof was authorized by his said will.” This purchase cannot be upheld under the clause just cited from' Yon Kapff’s will.

It cannot be included in the investments which they were authorized to make; that is to say, safe and productive stocks or funds, or mortgages of undoubted security. As the purchase was made with the funds of their testator’s estate, of course the estate was entitled to the property. But if any loss had accrued, the executors would have been bound to make it good, inasmuch as they had without due authority exposed to hazard the money entrusted to them in a fiduciary capacity. But when the leasehold became the property of the estate, the executors were justified in dealing with it in the same manner as with any other personalty in their hands to be administered.

The contract of sale to William Norris, and the subsequent- deed to his executor were made before the Act of 1843, and consequently an order of the Orphans’, Court was not required to give them validity. We can see no objection to them. The deed to Norris’s executor contained a recital that all the purchase money had Been paid. This recital is prima facie evidence of payment.

Of ²⁹³ course if it had not been paid the execufors could have recovered it by action at law upon the requisite proof. ■ But such suit has been barred by limitations for more than fifty years. It has not been suggested that a vendor’s lien, could be maintained at this time. It has, however, been alleged that there is no sufficient proof, that the purchase money for this leasehold has been distributed to the legatees of Yon Kapff. But the purchaser would not be responsible for any failure of duty on the part of the executors.

We learn from the record, however, that in 1833, a bill in equity was filed by Yon Kapff’s executors praying the Court to assume jurisdiction of the trusts, and to provide for the settlement of all necessary accounts in connection with the statement of the estate. All the children of the testator, they being the residuary devisees and legatees, were made defendants, and were duly summoned and answered. An auditor’s account was filed in due course in January, 1836, which distributed the estate, and we suppose that we are to understand from the agreement of counsel that it was duly ratified. All of the parties entitled to a share in the residue filed releases t'o the executors acknowledging the receipt of the amounts audited to them, except one, who at the date of the filing of the bill (June, 1833,) was a boy thirteen years of ag.e.

The executors were the guardians of this infant. This ratification of the auditor’s report, unappealed from, has certainly, concluded the rights of all parties to the suit. The infant became of age in 1841. If any breach of duty had existed on the part of his guardians who were also the executors, he could then have obtained redress.

Most certainly no appeal can now be taken from the order of ratification, and it must stand as a final settlement of the rights of the parties interested in the distribution of the Yon Kapff estate. An objection is made to the title because Lewis Seldner, the husband, paid a portion of the purchase money. ²⁹⁴ The evidence is” to the effect, that