Argument for Appellant.

[No. 725.]

THOMAS D. HUNT ET AL., APPELLANTS, v. JANE G. HUNT ET AL., RESPONDENTS.

66

CONSTRUCTION OF WILLS.-The testator, by his will, disposed of his property to his wife, having the fullest confidence in her capacity, judgment, discretion and affection, to properly bring up, educate and provide for our children, and to manage and dispose of my said property in the best manner for their interests and her own:" Held, that the devisee took the property devised as absolute owner, and not upon trust. IDEM. In construing this will the court held, that the widow had the absolute right to sell and dispose of the estate at her discretion. IDEM-SECTION 150 OF THE PROBATE ACT CONSTRUED.

- The probate act regulates the proceedings of executors and administrators as such, and acting in that capacity alone, the validity of their acts depends upon a compliance with its provisions; but the act has no application to a case like the present, where the executrix is owner of the residuary estate.

APPEAL from the District Court of the First Judicial District, Storey County.

The facts are stated in the opinion.

B. C. Whitman, for Appellant.

I. The main object of this appeal is to show that the wife did not take absolutely, and had at most a life interest, coupled, probably, with a limited power of disposal. The primary and decisive question is, was there a trust created by the language quoted? Although the very numerous cases are seemingly contradictory, still, when examined by the light of the rule as stated by Redfield on Wills (vol. 2, 411), they will be found, on the whole, tolerably consistent. Given clear subject-matter, object and surrounding circumstances similar to those of this case, and the weight of authority is to make the words of the will mandatory. (Massey v. Sherman, Ambler, 520; Macey v. Shumer, 1 Ark. 389; Hart v. Tribe, 18 Beav. 215; Gully v. Cregoe, 24 Id. 185; Shovelion v. Shovelton, 32 Id. 143; Warner v. Bates, 98 Mass. 275; Young v. Young, 68 N. C. 309; Curnick v. Tucker, 7 Moak's Eng. R. 845.)

II. In no aspect of the case, under the rules of equity, is the purchaser absolved from the liabilities of the trust sim

Argument for Appellant.

ply because he pays an adequate consideration, unless the devisee under the will had an absolute power of alienation untampered by any consideration. (Lewin on Trusts, L. L. ed., vol. 24, 104-5, sec. 206; Redfield on Wills, 2d ed. vol. 3, 537, sec. 96, 545; sec. 104; Price v. Reeves, 38 Cal. 457.)

III. If there is any power of sale under the will, it is only contingent, and entirely governed by the consideration of the best interests of the children, and a purchaser must, in some manner, ascertain that the sale was thus made, for his own self-protection. The only manner in which the ascertainment could have been had, would have been by order of the probate court, as having submitted herself thereto, the executrix and devisee was bound to proceed in all things under its order, and any sale otherwise made was void. (Redfield on Wills, vol. 3, 2d. ed., 565, sec. 130.)

IV. If it be held that the law in existence at the death of the testator governs the estate, then that must be the law. of Utah, and not the common law. (Grimes's Estate v. Norris, 6 Cal. 621; Tevis v. Pitcher, 10 Id. 465; Downer v. Smith, 24 Id. 114.)

V. The intention of the testator was to appropriate his property to the use of his wife and children, leaving to her the management and disposal thereof; but only with reference to the desired objects, and between themselves. The confidence that he had was not general and with regard to all subjects, but that she would, in a particular manner, do a special thing. Had he intended to rest the fee in his wife, or give a power of sale, apt words would have been used to express such intentions. That there was a trust, I hope is proved; that there was no power of sale, I think equally demonstrable. To manage" involves a holding of the property; it could not be managed if alienated. To this power of management is added, not disjoined, the power "to dispose of my said property in the best manner for their (the children's) interests and her own." To dispose of when absolutely used, does not positively mean to sell, but rather to divide-to allot. Can the words mean anything else as to these beneficiaries for, whom their father is so industriously careful? The tendency of later decisions is all

Argument for Appellant.

against the wresting of language from its plain sense, and toward giving it a natural meaning; or to express it more fully, taking the circumstances existing at the date of the will, to give to the words of the testator the interpretation which would naturally arise upon them if then spoken. Adopting this rule, and weighing the words "manage and dispose," in connection with the other language of the will, no absolute power of sale or alienation can be evolved; nor do they, with any strength, evidence even a contingent power dependent and arising from the necessities of the children or wife, or both, even if exercised under the direction of the probate court; but they rather indicate that the property was to be managed for, and disposed of among and between the mother and children. (Young v. Young, 68 N. C. 309; Curnick v. Tucker, 7 Moak's Eng. R. 845.)

A. B. Elliott, for Appellant.

I. The letter must give way to the general meaning of the will. (Den v. McMurtrie, 3 Green, N. J., 271.)

II. The will created a trust in favor of the children and heirs at law of the testator. (Lambe v. Eames, 10 Eq. Cas. Law Rep. 273; Story's Eq. Jur., vol. 2, sec. 1065; Crockett v. Crockelt, 1 Hare Eng. Ch. 451; Redfield on Wills, vol. 1, 175; 2 Story Eq. Jur., sec. 1068; Lewis on Trusts, 181; Walker v. Quigg, 6 Watts. 87; Wright v. Atkyns, 17 Vesey, 255.)

III. The trust being established, it must be shown that the deviser sold the property for the purpose specified in the will, and that the purchaser bought, without notice of the trust, in good faith, for a full and adequate consideration. (Walker v. Quigg, 6 Watts. 91; Redfield on Wills, vol. 3, secs. 17, 95, 104; Story Eq. Jur., vol. 2, sec. 977, 1131; Lewis on Trusts, 244.)

C. H. Bryan, also, for Appellant.

I. The will creates a trust. (Taylor v. Plaine, 1 Am. Rep. 34; Redfield on Wills, 176.)

II. All matters of trust, except when controlled by statute, are under the direction of courts of equity. (Matter of

Argument for Respondent.

Van Wyck, 1 Barb. 565; Knight v. Loomis, 17 Shep. 204; Gibbons v. Riley, 7 Gill. 81.)

M. N. Stone, for Respondent.

I. The will gives the property absolutely to Mrs. Hunt free from any trust in favor of her children. The clause in the will, "having the fullest confidence," etc., does not create a trust, but at most is only an expression of confidence in the devisee. (Story's Eq., vol. 2, sec. 1069, and cases cited; Bristol v. Austin, 40 Conn. 439; Gilbert v. Chapin, 19 Conn. 346; Pennock's Estate, 20 Penn. St. 268; Webb v. Wools, 2 Simons, N. S., 42; Eng. Ch. Repts. 270; Lambe v. Eames, Eng. Eq. Cases, vol. 10, 270; Same v. Same, Eng. Ch. Appeal Cases, vol. 6, 600; Mackett v. Mackett, Eng. Eq. Cases, vol. 14, 52; Brook v. Brook, 3 Sm. & Giff. 280; Ex parte Payne, 2 Younge & Coll, 636; Green v. Green, 3 Ire. Eq. 90; Redfield on Wills, vol. 2, 415; Reeves v. Baker, 18 Beavan, 372; Howorth v. Dewell, 29 Beavan, 18; Fox v. Fox, 27 Beavan, 301; Smith v. Bell, 6 Pet. 68.)

II. Conceding, for the sake of argument, that the will creates a trust, it gives to the defendant, Mrs. Hunt, the power to dispose of the property in the best manner, and also vests in her a beneficial interest therein. There was, therefore, no necessity for a probate order to sell the property, she having power to sell without such order. Her conveyance of the premises was all that was necessary to pass the title. (Norris v. Harris, 15 Cal. 256; Lared v. Casaneuva, 30 Cal. 567; 18 Cal. 299; Battelle v. Parks, 2 Mich. 531; Conklin v. Egerton, Admin., 21 Wend. 436.)

III. The probate law of this state cannot apply to this case so as to interfere with the power to sell conferred by the will. The will was made in 1859, and the probate act was not adopted until 1861. To make the act retrospective would impair the vested right of the devisee, under the will, to dispose of the property devised in the best manner her judgment might dictate. (Conklin v. Egerton, Adm., 21 Wend. 435; Estate of Delaney, 49 Cal. 77.)

IV. Even if there is a trust, it is coupled with a power

Opinion of the Court-Beatty, J.

to sell, and Mrs. Hunt having sold the property to a purchaser who bought it in good faith for more than an adequate consideration, he should be protected.

The present well established rule of law, in regard to trust estates, is, that where the trustee holds the trust estate for the purpose of sale and conversion into money, or with power of sale and conversion, any one who in good faith accepts such transfer upon adequate compensation will acquire a valid title. It is only where no power to dispose of the property is given that the purchaser must see that the purchase-money is applied by the trustee to the purposes of the trust. (Redfield on Wills, vol. 3, p. 537, sec. 95.)

By the Court, BEATTY, J.:

In August, 1861, Davis S. Hunt died in Storey county, in this state, leaving a widow, the above named defendant, Jane G. Hunt, and three minor children, who are the plaintiffs herein. By his last will, made in 1859, after directing the payment of his debts, the said Davis S. Hunt disposed of his property as follows:

"Second. I give, devise and bequeath, all the rest and residue of my property, real, personal and mixed, of every kind and nature whatsoever, to my beloved wife, Jane G. Hunt, having the fullest confidence in her capacity, judgment, discretion and affection, to properly bring up, educate and provide for our children, and to manage and dispose of my said property in the best manner for their interests and her own." He also appointed his wife sole executrix. In February, 1862, this will was admitted to probate and letters testamentary issued to the said Jane G. Hunt, who filed an inventory of the property of the estate which included a certain house and lot in Virginia city. Pending the proceedings in the probate court she conveyed this house and lot to Mercedes Navarro, one of her codefendants, who conveyed it to L. P. Drexler the other of her co-defendants. No authority was obtained from the probate court to make this conveyance.

In August, 1874, the children of the deceased, having