| Show DISPOSING OF ESTATES at the last session of the territorial supreme court a dee decision ision was made in the S S walker estate restate case and it was announced that judge anderson would at a future date deliver the courts opinion saturday afternoon april the judge completed and filed the following as the courts ruling in the supreme court of the territory of utah in the matter of the estate of samuel sharp walker deceased appeal from the third district court henderson judge marshall royle roy ie attorney for foe the executor W H dickson attorney for the purchaser P L williams amicus curiae Ax DERsoN J this is an appeal from a judgment of the third district court refusing to confirm certain sales of real estate made by the executors of samuel S walker deceased the deceased died september 1887 in salt lake county in this territory seized of a large amount of real estate he left a widow and six children he left a will made in 1882 by which he devised to his widow during her natural life one third of all his estate and the balance of his fats estate to his children he also directed in his will that his executors pay to each of his bis children on attaining the age of majority the sum of live five thousand dollars the seventh clause of the will in as follows follow 4 seventh the executors of this will shall have power to sell either at public or private vale pale in their discretion cret lon any portion of my estate for the purpose of effectuating the intentions and commands hereof the last clause of the will is as follows 1 vlasty lastly I 1 hereby I 1 a appoint iab brothers joseph B R walker a ana matthew H walker or in case 0 of the death of either of them the h survivor the executors of this my last will and testament and neither of them shall be required to give bonds for the faithful performance of their duties bere hereunder under 12 the will was duly admitted to probate and the executors named entered upon their duties and in their capacity as such executors made various contracts for the sale of portions of the real estate for the purpose of paying off the indebtedness of the estate these contracts were reported by the executors to the probate court and an order was asked confirming the salea sa lefLand and notices were given pursuant to the statute that a hearing would be had upon the hearing the probate court refused to confirm the sales because no notice of such sales had been given by the executors and the executors appealed from froin that order to the district court upon the hearing in the district court it was shown that the several parcels of real estate had bad been sold by the ex at private sale without notice the widow and some of the children testified that the sales were fair that they were in the in terest of the estate and that no one was opposing the confirmation the court found that the executors had bad acted in good faith and that the sales had been fairly made but denied the motion of the executors to confirm the sale because no notice had been given from this order the executors have appealed to this court and the sole question presented for our determination is whether the executors had the authority under the will to make the sales without advertising before the sales were made I 1 at common law the panr and authority given under a will was exercised the same as any other authority and the will was to be looked to and consulted on the question of power the same as where a party acted under a power of attorney and it was unnecessary to have the aid of the probate court iu in executing it but in this territory while the right to dispose of property by will is not limited by statute the statutes regulate the exercise of the right and prescribe the manner in which in certain cases the authority conferred by the will may be executed by the e executors the statutes of this territory in regard to the settlement of estates of decedents dece dents provides that no sale of any property of the estate of a decedent is A valid unless made under an order of the probate court except as otherwise provided in this chapter all sales must be reported under oath to and be confirmed by the court before the title of the property sold sod passes compiled laws see sec other sections of the st atlate prescribe what the order of sale shall contain the notice of sale that shall be given the return of the sale to the court the manner in which sales may be confirmed and the notice that hall be given of the application for the order of confirma boxi a the statute provides with jauch u uch particularity the mode of procedure ure in all cases of sale of the real estate ab of decedents dece dents where there is no will or where the will falls fails to air direct how bow sales shall be made the exceptions to the mode of sale prescribed in the statute referred to in section are found in see sec and are as follows if when property is iff directed by a will to be sold or authority is given by the will to sell property the executor may sell any property of the estate without order of the court and at either public or private trie sale s and lz with or without notice as the he testator e may have directed but the executor must mike return of such sales as in other owes cases and if directions are given in the will as to the mode of selling or the particular property to be sold such direct directions iorA must be observed f in n either caw case no title passes unless the sale is confirmed by the court where a will confers upon an executor a power coupled with an interest or the fee in the estate is devised to the executor in trust for the benefit of other persons and the intention of the testator to take the management ot of his him estate out of the probate act is clear the interest vested in the executor and the power and authority given him by the will authorize him after the will has been probated to proceed to sell real estate in the manner directed by the will without obtaining an order of sale from the probate court and without giving the statutory notice of such sale owe and without asking the court for an order of confirmation estate of delaney 49 cal 76 payne vs payne 18 norris vs harris 16 15 2656 2556 6 larco 30 estate of durham 49 t but a diff different brent rule prevails where the will confers upon the executor a mere naked power not coupled with any interest in such a caw case if authority to sell is given by the will or the will directs a sale of property an order of sale by the court is unnecessary and the executor may sell without such order in the manner directed by the testator but if the testator has given no directions in the will the case comes within the provisions of the probate act and the sale must be conducted under the orders of the probate court and in accordance with the statute estate of durham supra in this case it is not contended that the will confers anything more than a mere power the executors have so treated it and have in all respects complied with the s statute fatute except 4 that no notice was given of the sale but counsel for appellants contend therill the will authorized the executors to sell without notice if in the exercise of their discretion they determined to sell in that way that the language an of the will authorizing them to sell either at public or private sale in their discretion left the question of notice as much in their discretion as the question as to whether the sale would be public or private at the time this will was made the statute of this territory provided that an executor should give notice of the sale of property the same as an administrator unless there were special directions given in the will in which rase case he was to be governed by such direction the present statute provides that the sale may be either with or without noties notice as the testator may have directed and that if directions are given as to the mode of sellin selling 0 or r the particular property to n be sold such lauch directions must be observed we think that as to the tee question of notice there to is no material difference in the two statutes the earlier utah statute was an exact copy of the california statute in force prior to july 1874 and the present utah statute is substantially the same as the california statute which was adopted in that year counsel for appellants refer us to larco vs Casane ueva 30 vol and insist that as we adopted the statute the rule there laid down should control the decision in this case in that case the will contained the following clause 1 I hereby appoint my bi other brother francisco Casane ueva my executor of this my last will with power to sell dispose of and convey all my i said property both real and personal N for the benefit of my said sister ster without obtaining any order of any court and L hereby dispense with the sity of his bis giving the bonds required by law for the faithful execution of the trust hereby created in that case it will be seen that the power conferred was upon the person named that he was authorized to convert tle the entire estate into money and reduce it to his possession the court in that case substantially held that it was a power coupled with an interest and that taking it altogether it was apparent thit th tt he intended to take the execution will wholly out of the possession of the probate act and that it waa unnecessary for him to apply to the court for authority to sell or ask the court to confirm the sale after it had bad been made if the will in this case should be construed the same as the will in that ease then the order of confirmation no A v sought to be obtained would be unnecessary as the executors could proceed proceed wholly independent of the probate probate court but in the later cane of the estate of durham 49 cal eh ch arose under the former stai statute tite of california which was identical with our earlier statute and substantially the same as our present probate act the court say when therefore the will creates a naked power a power not coupled with an interest the executors must give notice of the sale returning accounts thereof and unless there are special directions in 14 the will must conduct the sale in all respects as if made under the order of the court in this case cam we must presume the testator made his will in view of the provisions of the statute in force at the time he wrote it he devised his property in fee to his children and conferred upon his executors the mere power to sell as much ot of his property as may be necessary to carry out the pro provisions visions of the will and authorized them to sell at either public or private sale in their discretion hut but gave them no other discretion in the conduct of the sale and gave no directions as to bow the sale should be conducted he did nothing indicating an intention the execution of his will out of the probate act the power to sell his property is conferred upon his executors whoever they may be and is not conferred upon the executors in this will by name the appointment of the executors is a separate and independent provision he must have made it with the understanding der standing that who ever executed the will would be required to comply with ith the provisions of the probate act and that it would be under the supervision of the probate court it is reasonable to lo conclude when he authorized the executors to sell at public or private sale he be meant the kind of private sale provided for in the statute and which that notice should be given if he had intended that these sales be made without notice it is reasonable to conclude he would have so stated we are of the opinion that the will in this case confers a mere naked power upon the executors that it au authored authorises autho thores rises them to determine whether sales of property shall be at public or private sale but that in whichever which ever way they proceed the sale must be conducted pursuant to the statute and that the statutory notice not having been given of the sales in controversy they are invalid the judgment of the district court is affirmed we concur Zane CJ blackburn A J |
