Show DISPOSING OF ESTATES A Kulioj of Importance lo A d mlnistralors At Ihe Ut > mlon of the TerrIto rial Supreme Court I deriion was made in the S B Walker estate C and I was announced that Judge Anderson would at a future date deliver the crt opInion This afternoon Uio Judge complete and fled the folio wing as the courts ruling In the Supreme Court of the rr ritoryofUtah in the matter of lie doe estate of Samuel Sharp Walkc Appeal from the Third District App Judge Marshall < fc Boyle attorney f or the executor W H Dlckson attorney for the purchaser P L Williams Amteui CVioe AMDEKSOV Jj This I an 1 i ° peat from a Judgment of the Third District Court refusing con firm certain sales of real tAt made by the executors of Samuel b Walkrr deceased The deceived died September lOtb 18S7 in tunIt LaIr County In this Territory seiret ola large amount of real tc lie left a widow and six children lie reft a will made in 16S2 by which he devised to his widow during her durUf natural life onethird of alf hIs estate ami rlle rdof his estate t his children He abe directed in his will that his executors pay to each of his children on altnluj the age of majority the sum of five thousand dollar The tbotnd l To seventh claure of the will Ls as FOtent Seventh The executors of th i will shall have power to sell either rwer a public or private flle In their di crcUon any portion of my estate for lie Pfo dfcttc the Inten hoes and commands hereof The last claute of the will is as i follows wi a LastlyI hereby appoint my brothers Joseph I Walker and Matthew H Walker br in case of the death of cither of them Ute survivor the executors of this my last will and testament and neither cfthem shall b required to glv bonds for the faithful performance of Uicir duties hereunder romloc The will was duly admitted to protein ana the executors named entered upon their duties and in their capacity a such executors made various contracts for the sale portions of the real estate for the purpose of paying otf the indebtedness indebted-ness of the estate These contracts were reported by Due executors to the probate court and an order was asked confirming the sales and notices no-tices were given pursuant r the statute that a hearing would be had Upon the hearing the probate court i refuted to confirm the tales because no notIce of such Ie had been given by the executors and the e editors appealed from that order t orer the dIstrict court Upon the hear lug in the district court It m shown that the several parrels of real estate had been sold by the executors ecutors at private sale without no Uc The widow and tome of the children testifIed that the sales 8e wer far that they weroin the in tcrcst of the estate and that no one ir54 cored theesflcssii n In court found that t hue executors hat acted in good faith and that the sales hid been fairly made but denied de-nied the motion of the executors to confirm Ute sale because BO notice hal been given From this order orr the executors have appealed to this npplc court and the sole iUi > ton presented pre-sented for our determination is I whether the executors hail the authority under the will 1 make Uie sales without s wllot advertising before the salts were made s nl At common law the power and authority given under a will was exercised the same as ant other authority and the will was to be looked to and consulted on Uieiiues Uon of power the came n where partyaetcd undcra power of attorney attor-ney aud i was unnecessary to have unne1 1 lie aid of the Probate Court In ee cuUnglt butinthisTerrhtory while ctog It btu Uti Territory whie thu right t dispose of property by will it not limited by statute the statutes regulate lie exercise of the right and prescribe the manner In which In certain cases the authority author-ity conferred by the will may be executed by the executors The statutes of this Territory in regard to the settlement ot estates of dectdents provide that Xo sale of any property of the estate of a I decedent is valid unless nude under an order ot lie Probate Courtex cejt o oUierwfce provided in this chapter All MIl mut Ix reported reprte under oath to and be confirmed by the court before lie title of the property prop-erty sold pase Compiled prp Sec JI45 Other sections of the statute prescribe what the order of wale shall contain the notice of sale lout shall 0 given the return cf the sale to the court the manner in which sales may b confirmed and the notice that hal b given of the application for the order couflrma turn The statute provides wiUi much arUcularitylhe mode of procedure pro-cedure In ail cases of sale of the rml estate of decedents where there Is no will or where the will falls to direct how sales shall b made The exceptions to the mode of sale prescribed pre-scribed in the statute referred to in section U4J are found In sec 41S1 and are as follow When property In directed byn will to be sold or authority is given by the will to l property the executor ex-ecutor may sell any property of the estate without order of the crt and at either public or private sale and with or without notice n the testator testa-tor may have directed but the executor ex-ecutor must nuke return of such Kales as in other case and I directions direc-tions arc given iu the will as to the mode of spelling or the partIcular I projierty to lie siqld such directions mut b observed In cither case no f Illl TYUip l ttn M lhenueluess firmed by the court Where a will confers upon an executor a power coupled with an interest or the Ir in the estate is devised to the executor in trust for the benefit of oUier person and the intention of the testator to take the tem te-m ementol Im estate oat of the Probate act is clear the iutcrut vested in the executor and the power luLl authority given him by the will authorize him after the will ha been probated t proceed to sell real estate in the manner directed by the will without obtaining obtain-ing an order of sale from lie Probate Court and wiUiout giving the statutory notice of such se and wIthout askingthecourt for an order confirmation Estate of Delaney 49 CsJ 7B Payne 8 Payne IS n J Xonis tS Harris 15 C 2SoG I irco vsCaaneuvo 30 56S Estate of Durham 40 455 But a different rule prevails where the will I confers upon et executor a I mere naked power not coupled with any Interest r1er such a case I authority to sell is given by the will or lie will directs a rale of property an order of sale by the court ia unnecessary un-necessary and the executor may I without Fuchorder in the manner man-ner directed by the testator But if the testator has given 119 directions in the will the case comes wiUiin The provisions of the Probate act and the sale outb conducted under un-der the order of the Probate Court and in accordance with the statute Estate of Durham tupra In this case it is tint contended that the will confers anything more tbau a mere power The executors have s treated It and have in all respects mlle with the I tatute except that no notice was given of the eae But counsel for appellants contend the will authorized the executors to sell without notice if in the exercise of their discretion they determined t sell in that way that the language lan-guage of the will authorizing them to sell either at public or private sale in Uielr discretion let the question of notice as much In their dificreUon as the question as to whether the sale 1 would be public or private At the time this will wa made the statute of this me Territory tatte Tertol provided vided that an executor should give I notice of the sale of paoperty the lprty game as an administrator unless there wero special directions given I in the will in which case he waste b governed by such direction The I present statute provides that lie sale may b cither with or wIthout notice no-tice n the testator may have direct dand that directions are given as to the mode of RUng or the particular property lo b cold such directions must b observed ob-served We think that as lo the question of notice there I no material terial diQirenco in tbo two statutes The earlier Utah statute was an exact act copy of the California statute in force prior lo July 1S74 aunt the = J tN present Utah statute is cuUtanUaly the same n the California statute which was adopted in that year Counsel for appellants refer us to AlILDI Iarco 8 Casaueueva 30 of 501 and Insist hI as we adopted the California statute the rule there r laid down should control thu dec Ion in this case In that case the I will contained the following cw it hereby appoint I my brother Francisco Casaneuevamy cxwnitor of this my last will with power to I sell dispose and run 11 un said property both real and personal per-sonal for the benefit of my said sister wiUiout obtaining any order of any court therefor And I hereby dispense with lie necessity neces-sity of his bl giving the bonds required by law for the CiUhful execution of the trust hereby here-by created In that case I will b seen that the power conferred was upon the person named that he itt i was authorized to convert the entire estate Into money and reduce I to his possession The court In tlC tl-C substantially held that I was a power coupled with an interest and tt taking allogiUicr I wa ap parent that he intended to take the execsitjou of his will wholly out te he possession of theprobate act and ofUteprobwaclnnd hat it was unnecessary for him to apply te the court for authority to tl or ask the court r confirm lie sale after I had been made If the wIll in thU case should be construed he same a the will in that case then the order of confirmation UOA sought to b obtained would bo unnecessary un-necessary n the executors could l roceed wholly independent of the rebate Court But In the later ease of the estate of Durham 49 Cal 495 which arose under the former tatute of California which was IdentIcal with our earlier statute and substantially the same as our present probate nct the Court say When therefore the will creates n naked powera power Itt coupled withau Interest the executors must give notice of tile sale returning accounts ac-counts thereof aud unless then arc epochal directions in the will must conduct the sale lu all mpecls as if made under the order of the Court In this case we must presume the testator made his sill in view of him i revisions of the statute in force at he time he wrote I lie devised his property In fee to his chIlies and conferred upon his executors lie mere rower to sell as much ot lila property as may b necessary to carry out the provisions of the will and authorized them to sell at either public or private sale in their discretion dis-cretion lit gave them no other dis rctlon iu the conduct of the sale and gave no directions n to how the sale should be conducted He did nothing indicating intention t take the execution uf his w III out of theprobate act Tlie power to 1 his property f conferred upon upn ils executors whoever they may b and f not conferred upon the execu tore in this will byname Tiieap np olntment of the I executors is a separate and independent provision lie mut liavcmvJuit with tlieun erstaudlng tint who ever executed the will wirul be required to comply wll Uio pruvMons o the Prolate Act and that It would bu under the uiiervision of the PrMwte Court I is reasonable lo conclude wbcnlie authorized the executors to sell at Hiblte or private sale he meant the kind of private nle provided for Inc In-c statute and which required that nolr should b given 1 he had intended that these sales Ic made Itlinut nntftp if ta n innnlilf In conclude he would have so stated I We arc of the opinion that the wIll in this cox confers a mere aked power upon the executors j that authorizes them determine hether sales projierty shall l < e at public or private sale hut that in whitchu ever way they proceed thin lemuitbe conducted pursuant lu the flute and that the statutory otice not having been given of the sats in coutrovenv they are in vaIl I vaIlThe Judgment of the District Court isaflirmnl We concur XaneCJ Ulackbum AJ cner |