Sims v. Lively , 53 Ky. 433 ( 1854 )

Judge Marshall

delivered the opinion of the court.

Samuel Finley, by his will admitted to record in June, 1832, after devising to his two sons, Hardin and Preston, land, slaves, and personalty constituting much the largest portion of his estate, says, in a subsequent and distinct clause, “It is my will and desire that my sons, Hardin and Preston Finley, out of the bequests above named, to them made, purchase for my grandchildren, Preston Sims and Addison Sims, six hundred acres of good arable lands, with a sufficiency of timber to support it, in one, two, or more tracts, as my sons may think best for the children, in some good part of the state of Illinois.” To which he adds, “It is also my will and desire that they collect the sums due to my said grandchildren from the estate of their father, and that they have the use of that in the purchase of the land aforesaid;” and he says further in a succeeding clause, “It is also my will and desire that my two sons, Hardin and Preston, at their own expense, send the said Preston and Addison Sims to school, until they shall have received a good English education, and at th© age of twenty-one years, each of said boys receive of them a good horse, bridle, and saddle.” And in the conclusion of the will he appoints his sons, Hardin and Preston, executors of his will.

The benefit intended to be secured to the two grandsons, by the clauses above quoted; is all that is given to them by the will; but their uncles, the devisees, sold the tract of land, of the value of $1,200, four slaves, of the value of $2,300, and personalty of considerable value, and left the country insolvent, without complying with the trust imposed on them with respect to these two nephews, or either of them. And in June, 1844, Preston Sims, having recently arrived at full age, filed his bill against them and their sureties, in their executorial bonds, and against Lively, who in 1839 had purchased the land devised to Hardin and Preston Finley, alleging that the land in Illinois was never purchased fer himself and brother, and that neither of them had received the education or the horse, saddle, and bridle directed to be provided for them, and praying a decree against some or all of these parties by which he shall be compensated; Addison Sims was also made a defendant, and in May, 1845, he having attained full age, filed a cross-bill by which he in effect becomes a co-complainant with his brother, praying for the same relief and on the same grounds.

The defendants deny their liability; allege that the complainants had received or disposed of the funds coming to them from their father’s estate, which, in any event, they claim as a credit, and Lively plays contribution from the purchasers of the slaves, whom he makes defendants to his cross-bill. A jury was impanneled to ascertain the value of the land devised to Hardin and Preston Finley, and also that of the slaves, and of the personalty, and to ascertain the value of the six hundred acres of land directed to be purchased in Illinois, and of the education, &c,, to be furnished to each of the complainants — all of which was done. But on the hearing, the court being of opinion that the executors had been guilty of no breach of duty in that character, and that the land sold to Lively was not liable for tbe default of the vendors, nor himself bound to see to the application of the purchase money, gave no decree against any of these parties, but decreed only against Hardin and Preston Finley, dismissing the bill as to the other defendants. The complainants seek a reversal of the decree dismissing their foils, and claim- that they are entitled to relief either against the purchaser of the land, as having been bound to see to tbe application of the purchase money, or against the securities of the executors on account of the slaves and personalty which should or might have been applied to the objects plainly indicated by the will, or against all of these parties. But although the case of the complainants, if they cannot obtain relief on one or both of these grounds, is one of great hardship, and such a result will leave their grandfather’s will in their favor wholly unaccomplished, we do not perceive any solid or safe ground for a decree against either the executorial sure- '■ ties, or the purchaser of the land.

1. Where no duty is imposed upon an executor, as executor, but upon him as a devisee under the will, he is liable only as devisee, and not as executor, and there is no liability upon his sureties as executor.

With regard to the first, it is sufficient to say that the will imposes upon the executors, as such, no duty whatever to be performed for the benefit of Preston and Addison Sims, or either of them. The whole duty, on this subject, is imposed upon the devisees, and and none, whatever upon the executors. If the executors had been different persons from the devisees, it would not have been the duty of the former to withhold from the latter any part of the property devised or bequeathed to them, at any rate, unless there were good grounds to believe that the devisees would not perform the duties required of them by "the will, and which they were to perform in consideration of the property given to them, or out of it. Nor do we suppose that .in any other case, if in that just stated, they would have had the right thus to withhold the property . from the persons to whom the testator had given it, and in whom he had confided for the performance of the duties connected with the gift; and, although the devisees are also named as executors, and qualified aa such, yet, as their rights and duties in these two capacities are as different as if the persons to whom they pertain were different, so ought their liabilities to be. Their delinquency is not as executors but as de - visees, and, as they have committed no breach of duty as executors, there is no ground for holding their sureties liable for their failure as devisees.

2. Where the will provided that certain devisees, out of a devise of land and slaves made to them, with the aid of another fund, not certain, should purchase land in Illinois, and convey it to certain other per - sons, grandchil dren of the testator, and also that the devisees, at their own expense, should educate said grandehildren-Held, that if there be a trust, (which is not decided,) it is not such a trust as would require that an innocent purchaser of the land, and ignorant of any fraud, should be bound to see to tbe application of the purchase money to the purchase of the Illinois lands. , 3. Where there is an absolute devise of land 'to one, though he be appointed executor, and though,iu consideration of the devise, a personal duty be imposed upon the devisee, it is only by construction and inference that the conclusion is arrived at that the purchaser must look to the application of the purchase money. There is no lien — such lien or express trust as would apprise a purchaser of its liability. The inference of liability is subject to be rebutted by circumstances showing its unr r easonableness. Sugden, vol. 2, page 36.

Then, with respect to the liability of the land or of the purchaser, we observe, in the first place, that there is a marked difference in the language used in relation to the Illinois land and that used in relation to the education, and the horse, saddle, and bridle — the first is to be purchased out of the bequests made to testator’s sons, with the aid of or in addition to the money coming to the grandsons from their father’s estate, the others are to be furnished by testator’s two sons, not out of the bequests made to them, but at their oimi expense, indicating clearly that it was to be out of their own property. If, then, it be conceded that the. duty of purchasing the Illinois land is a trust or charge affecting the land devised to the sons, it would not follow, and could scarcely be admitted, that the furnishing of the education, and the horses, &c., stands on the same footing; and if it be assumed, which we do not decide, that the purchase of the Illinois land, and the other acts required of the two sons for the benefit of the grandsons, constituted a trust or charge affecting the land devised, it does not follow that this is such a charge or trust as would bind the land in the hands of the purchaser, intfocent and ignorant of any fraud done or intended, or that it is such a charge or trust as would make such pnrchaser responsible fox* the application of the money which he had paid or was to pay in the purchase.

The will does not impose a direct and express lien upon the land devised, which, if it existed, would be obvious to any purchaser, and would justly follow the land. In terms it seems rather to impose a personal duty upon the devisees as the consequence or consideration of the devise, which m its own terms is absolute, and in such cases, it is only by construction or inference that th'e conclusion is arrived at, that the testator intended, or that equity requires, that the land should be bound in the hands of a purchaser, or that a purchaser must, at his peril, see to the application of the purchase money in performance of the trust. The land itself would not be directly bound unless there were a lien or such an expre ss trust upon it, as would apprise every purchaser of its liability; and where the obligation of the purchaser to see to the application of the purchase money is not clearly indicated by the will or other instrument of title, but is mere matter of equitable deduction or inference from the instrument of title, it must of course be subject to be rebutted or disproved by equitable consideration of greater weight, or by the unreasonableness of the inference, or of the duty or liability which it implies.

4. To impose on a purchaser the duty of seeing to the application of the purchase money, “the trust must be of such a nature that the purchaser would reasonably be expected to see to the application of the purchase money.” Such will be the case where land is charged with the payment of particulard’bts; but if not specified he is not b o und — nor where it is to pay debts and legacies, which Evolves the payment of al Bbt8'

The principle contended for, as being asserted by Sugden in his treatise on vendors, vol. 2, page 36, that in order to impose on the purchaser the duty of seeing to the application of the purchase money, “the trust must be of such a nature that the purchaser would (or as we would say, could,) reasonably be expected to see to the application of the purchase money,” is entirely conformable with the proposition just stated. And the recognised distinction, that where a will makes the payment of debts a charge upon land, a purchaser of the land will be bound for the application of the price, if the debts be scheduled, (that is, particularised,) but that if they be not scheduled, he will not be bound, seems to go upon the same principle that while a purchaser might easily see to the payment of scheduled debts, and might in fact pay them himself, it would be unreasonable to expect, and will not, upon presumption merely, be required that he should see to the payment of unscheduled debts, which would require the trouble of investigation and ascertainment. Upon the same principle, if the land be subjected to the payment of debts and legacies, the last of which can only be paid after the debts, the púrchaser of the land will not be required to see to the application of the price, although the legacies be certain, because that would involve him in an inquiry into the condition of the debts and a settlement of the estate.

5- Where & t«d\vkh ®!etion. ,in 1’18 trust fu n d, co°shouid rather suffer j¡as p„,-chased ofoneapparently having am thoriiy. 6. Whore a performance'0f jucretión^and the performance tant°point, ami after the lapso twelve years, the purchaser is not bound to see to the application of the purchase money — he had no power over the trustee to compel its application, nor means of knowing what proportion of the devise was necessary to carry out the intention of the testator.— There was no lien upon the land devised.

Of a similar nature is the doctrine admitted or asserted in the opinion of Judge Story, in Wormley v. Wormley, 4 Wheaton, 421; (5 Condensed Report, 481;) where the following language is used: “ i here is muon reason (says the judge) in the doctrine, that where the trust is defined in its object, and the purchase money is to be re-invested upon trusts which require time and discretion, or the acts of sale and re-invest- , , , , , ’ . ment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase money, for the trustee is clothed with a discretion in the application of the trust fund, and if any persons are to suffer by his misconduct, it should be rather those who have reposed confidence than those who have bought under an apparently authorized act.” And when we inquire for a reason why, in the case stated by Judge Storey, the purchaser should not be required to look to the application of the price, we find that so far as time and distance affect the conclusion, the doctrine has reference mainly to the convenience of the purchaser, and is founded on the unreasonableness of expecting him to be involved in a trust from which he could not, in a short time, and without any great trouble, be disengaged.

In this case time and distance and discretion were all involved in the investment required by the will to be made in the Illinois lands. If the proceeds of the sale of the land devised were to be re-invested in lilinois lands, under the requisitions of the will, then the case seems to come precisely up to that stated by Judge Story, as one m which, the purchaser xs not required to see to the application of the price. It such re-investment was not required, there seems to be no ground for saying that the purchaser of the land devised was bound to see to the purchase of land in Illinois. There is, in fact, no reason to suppose that the testator intended or expected that a sale of the land devised would be resorted to for the means of purchasing the Illinois lands. It would be some ten or twelve years before his grandsons would be in a condition to take possession of the Illinois lands, and the sons had that period within which to make the purchase. They had, also, ample means under the will besides the land devised, and might well have been expected by the testator, by the use of the land and other means which he gave by his will, to make within the period allowed more, than enough to purchase the Illinois lands and perform the other duties imposed for the benefit of the grandsons. Did the testator intend, or could it have been reasonably expected, that a purchaser of the land would be responsible for the uses made of all this property from the death of the testator, or that he would inquire into it? He could not himself purchase the Illinois lands according to the terms of the will, and could not compel the devisees to do it; neither could he ascertain what portion of the price of the land bought by him would be applicable to the purchase of the Illinois lands without ascertaining the debts, and in fact settling the estate of the father of the testator’s grandsons, since it was only so much as what was coming to them from that estate lacked of supplying the means of purchasing the Illinois lands, that was to be taken out of the bequests made to the sons by the will. This ascertainment, upon the admitted principle applicable to unscheduled debts charged upon land, he was not bound to make; and on all these grounds we conclude that it would be unreasonable, and according to the authorities, inequitable to hold the purchaser in this case bound to see to the application of the purchase money of the land j and as we think there was no lien which passed with the land into the hands of the purchaser. Therefore, the decree dismissing the bill as to him, and as to the sureties of the executors, is affirmed.