Opinion
No. 35672.
October 23, 1944.
1. EXECUTORS AND ADMINISTRATORS.
Under will providing "After my house and the rest of jewelry have been sold, I want the money equally divided between" two named legatees, and "Should either boy die before of age this money to revert to the estate for further distribution," executrix had implied power to sell realty mentioned for division of proceeds between beneficiaries designated when they became of age (Code 1942, sec. 518).
2. EXECUTORS AND ADMINISTRATORS.
Where will gives power of sale to pay legacies or for distribution, without stating by whom sale is to be made, executor takes power by implication (Code 1942, sec. 518).
3. EXECUTORS AND ADMINISTRATORS.
Where unpaid taxes constituted only title defect asserted by purchaser of realty from executrix under implied power of sale given by will, such alleged defect would not defeat right of executrix to specific performance, since purchaser had right to assume that executrix had done or would do what she was under statutory duty to do by paying taxes, which obligation could be readily accounted for under decree for specific performance (Code 1942, secs. 518, 572).
4. EXECUTORS AND ADMINISTRATORS. Specific performance.
Where executrix had implied power under will to sell testatrix' realty, the sale was not a "judicial sale," and no notice to interested parties was required, either in proceedings for sale or in proceedings whereby directions of court were sought, hence purchaser could not assert such failure of notice as defense in suit for specific performance of contract to purchase (Code 1942, sec. 518).
5. EXECUTORS AND ADMINISTRATORS.
The gratuitous advices given by chancellor pursuant to request of administratrix for instructions respecting sale of land under implied power to sell contained in will did not diminish such implied power and such a sale needed no court order to justify it (Code 1942, sec. 518).
APPEAL from the chancery court of Lauderdale county, HON. ROBERT G. GILLESPIE, Special Chancellor.
Snow Covington, of Meridian, for appellant.
In this case there is no controversy about the pleadings and no dispute of any fact. The executrix claims the power to sell under the terms of the will. The appellee denies that any power to sell is conferred by those terms. We take it as elementary that if the will confers the power to sell upon the executrix, then her authority derived from the will is complete, but if the contrary is true, then she must seek her authority from the court and a strict compliance with the statutes governing judicial sales. In other words, the will is the law to one who has the duty to execute it and he is entirely free to pursue its lawful directions.
Sandifer v. Grantham, 62 Miss. 412; Code of 1942, Sec. 518.
Long ago our court held that the statutory regulations governing sales by executors and administrators apply only to sales ordered by the court in pursuance of law and not to sales made under powers conferred by will.
Buckingham v. Wesson, 54 Miss. 526.
We do not contend that the power to sell claimed by the executrix is derived from the decrees of the court or that the several decrees of direction added to or took from the powers possessed under the will. In other words, we do not contend that there has been a compliance with the procedure necessary to make a valid judicial sale of the property. The purpose in reporting to the court and receiving decrees of direction concerning the sale, was to show diligence and good faith on the part of the executrix, and in recognition of the fact that although a sale of real estate under testamentary powers does not primarily require an order or confirmation by the probate court, it is nevertheless subject to the supervisory control of that court under such statutes as Section 1263 of the Code of 1942, providing that the chancery court may determine all matters in an estate administered, etc. No other purpose is claimed for those decrees and it is conceded that they were advisory only. We concede further that the will does not convey the title to this real estate to the executrix and that it does not contain a clause directly and expressly calling her by name and enjoining her to take it into possession, to sell it, and to collect the money. It is our contention that it is clear from the provisions of the will that the testator intended the executrix to have such power and the directions of the will are such that the power of sale is necessary in order that they may be carried out.
The will confers upon the executrix an implied power to sell because there is an express direction to pay legacies with the proceeds of a sale, to make distribution of the proceeds of a sale, and because the produce is to pass through her hands under that will.
Haggin v. Strauss (Ky.), 50 L.R.A. (N.S.) 642; 21 Am. Jur., Secs. 686, 690, 692; 41 Am. Jur. 811, Sec. 8; 33 C.J.S. 1295, Sec. 275; Ann. Cas. 1916D, 410, 419, 440.
The will confers upon the executrix an implied power to sell in order to carry out the terms of a trust created by the will.
41 Am. Jur. 811, Sec. 8; Ann. Cas. 1916D, 418.
The will confers upon the executrix an implied power to sell because it appears from the whole purview of the will to have been the testator's intention that the real estate should be sold and the proceeds applied by the executrix.
Lesche v. Cutrer, 135 Miss. 469, 99 So. 136; Ann. Cas. 1916D, 416; 21 Am. Jur. 769, Sec. 689; 33 C.J.S. 1294, Sec. 275.
Where the facts lie equally open to both, with equal opportunity of examination, and where the vendee acts upon his own judgment and does not rely upon the vendor's statements, the vendee is precluded from contending that further facts were not made known to him.
Hall v. Thompson, 1 Smedes M. (9 Miss.) 443; Corley v. Reed, 164 Miss. 678, 145 So. 241; Bell v. Henderson, 6 How. (7 Miss.) 311.
Where misrepresentation by a vendee rests in opinion and where the subject matter of such opinion is open to examination for judgment of all persons, there is no misrepresentation.
Anderson v. Hill, 12 Smedes M. (20 Miss.), 679, 51 Am. Dec. 130; Watson v. Austin, 63 Miss. 469.
Parties are free to make their own contracts as long as those contracts do not violate the law or public policy. If a party makes a contract which he later decides he does not like and regrets that he made, and even if he makes an outright bad bargain with his eyes open, it does not follow that the contract is inequitable or that the courts should not refuse to require him to carry it out because doing so will work a hardship on him.
49 Am. Jur., Secs. 9, 60.
The appellee points out that specific performance should not be decreed unless the vendee is to receive a clear title free of reasonable doubt and he quotes the test of reasonable doubt as set forth in 49 Am. Jur. 113, Sec. 96. Section 96 of the text referred to is simply a part of the discussion of the subject and must be read in connection with the preceding sections 94 and 95. It will be observed that the entire discussion set forth in Sections 94, 95 and 96 contemplates that the title to be conveyed is that which the vendor contracted and agreed to convey and that an absolutely clear title is not to be implied if there is an express provision to a different effect, that is, if there is a provision that some other and different kind of title is to be conveyed that may be less than a clear title. In the case at bar, the executrix contracted to sell, not a perfect and clear title, but "upon acceptance of bid I will convey such title as is vested in me as executrix." That is the only title she ever offered to sell or proposed to convey to anybody. That was an express provision in her offer which is part and parcel of her contract with Sturdivant that she was not proposing to sell and convey a clear and perfect title but only such title as was then vested in her as the executrix of the particular estate. Sturdivant accepted the proposal which is the only proposal that was ever made to him. There is no controversy in this record as to what the proposal was nor in what language it was framed. It was made in writing and was published in the newspaper where Sturdivant saw it. We do not deny that the law requires an executrix to pay the real estate taxes for that particular year, but there is no reason on earth why the executrix cannot relieve the estate of current taxes due by making a sale of real estate which contemplates the vendee paying the taxes which the vendor would ordinarily be required to pay. The effect of the statute is to require that the taxes be paid in order to protect the real estate. It does not have the effect of prohibiting the payment of the taxes other than out of the funds of the estate. It may be said that the law requires the payment of a mortgage upon real estate, but that does not mean that the person or the personal representative of the person who owes the mortgage cannot make a bargain which contemplates that another person become obligated to discharge the original obligation. The rule of caveat emptor applies to taxes as well as to any other charges against property. The advertisement proposed to sell the property and the title exactly as it then stood. A cursory investigation by Sturdivant would have led him to the knowledge that the taxes had not been paid as well as all other facts and details concerning the state of the title. The record does not show that any representation whatever was made to him about taxes or that he ever made any inquiry of the executrix or of the public records, until after he made his bid and it was accepted.
Wilbourn, Miller Wilbourn, of Meridian, for appellee.
The last will and testament of the original owner of the property, Mrs. Mildred Hinkle Kimball, in which the appellant is named as the executrix, did not empower and direct the said executrix as to the sale of the property, and did not unconditionally and unqualifiedly direct the said real estate to be sold by the executrix within the proper meaning and construction of Section 1622 of the Code of 1930 so as to excuse the executrix in making sale thereof from complying with Section 1694, Code of 1930, as to making the beneficiaries under the will of Mrs. Mildred Hinkle Kimball parties defendant to such proceedings and as to giving bond to account faithfully for the proceeds of the sale, as required by Section 1698 and Section 1699, Code of 1930; and the proceedings in the chancery court brought by the executrix in the matter of the estate of Mrs. Mildred Hinkle Kimball were not sufficient to make the sale of said real estate a legal sale thereof; that is to say, that the proceedings leading up to the sale of the property were invalid for want of proper parties and for want of compliance with the statutory provisions relating to such a sale, so that the deed tendered to the appellee by the appellant is ineffective to convey the title.
Sandifer v. Grantham, 62 Miss. 412; Buckingham v. Wesson, 54 Miss. 526; Bartlett v. Sutherland, 24 Miss. 395; Whitfield v. Thompson, 85 Miss. 749, 38 So. 113; Toothman v. Courtney, 62 W. Va. 167, 58 S.E. 915; Paxton v. Benedum-Trees Oil Co., 80 W. Va. 187, 94 S.E. 472; Dunlap v. Jackson, 92 Okla. 246, 219 P. 314; Beam v. Dugan, 23 P.2d 58; Burns v. Bastion, 50 P.2d 377; First Baptist Church v. American Board of Commissioners, Ann. Cas. 1916D, Note b. Power Not Implied, p. 431; Gammon v. Gammon, 38 N.E. 890; Code of 1942, Sec. 518; Jarman on Wills, marg. p. 741; 21 Am. Jur. 769, Sec. 689.
At best, the will of Mrs. Mildred Hinkle Kimball, of which the appellant is executrix, is so worded as that it was necessary that the said will should be construed by a court of competent jurisdiction to determine whether or not the executrix had any implied power to sell the real estate in question and what was the intent and meaning of the will of the testatrix with reference thereto; and the appellant sought a construction of the will by the court without making the beneficiaries of the will parties thereto, with the result that the construction of the will by the court originally in the court below was without binding effect and gave no protection to the appellee as a purchaser as to the title to the property the appellant sought to force him to accept.
Hancock v. Reedy, 181 Miss. 830, 180 So. 81.
No meeting of the minds of the appellant and appellee with reference to the sale of the property here involved came to pass as the result of appellant's advertisement of it for sale and appellee's submission of a bid therefor with reference to the accrued and past due taxes on the said property for the year 1943 which the appellant demanded, which taxes the appellant refused to pay, taking the position that the appellee was liable therefor.
Eatherly v. Winn et al., 185 Miss. 742, 189 So. 99; Code of 1930, Sec. 1675.
The court below was correct in finding and decreeing that the appellant was not entitled to the relief of specific enforcement prayed for in the original bill of complaint and that the appellee was entitled to be discharged from any obligation to take and pay for the property involved.
Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289; Atlantic Life Ins. Co. v. Klotz, 182 Miss. 243, 181 So. 519; 49 Am. Jur., Secs. 54, 56, 57, 58, 96.
See also Union Planters' Bank Trust Co. v. Corley, 161 Miss. 282, 132 So. 78; Pomeroy's Equity Jurisprudence, 3 Ed., Secs. 1404, 1405.
Mrs. Mildred H. Kimball died June 10, 1943, leaving a will in which appellant was named executrix without bond. The will contains sixteen items, all but the first three of which provide for bequests. There is no devise of lands but item fifteen is as follows:
"After my house and the rest of jewelry have been sold, I want the money equally divided between Charles Thomas Kimball, Jr., of Meridian, Mississippi, and Carl Van Nate Kimball of 313 Center Point Road, Cedar Rapids, Iowa.
"Should either boy die before of age this money to revert to the estate for further distribution of other requests." (sic).
The executrix filed a petition to the court for directions as to the manner of sale. In response thereto the chancellor found that the will granted express power to the executrix to sell the property and directed its sale through bids to be advertised for in a daily paper. Appellee submitted a written bid in the sum of $5,000, and after the chancellor had decreed that this was the best bid and adequate, the executrix tendered deed to appellee, who refused to comply with his offer and bid. Bill for specific performance was filed and appellee set up the absence of testamentary power in the executrix to sell, want of notice to interested parties, and defect in title. The court, reversing its opinion as to power to sell, dismissed the bill.
Our first inquiry concerns the existence of an implied power to sell the lands under item 15. We are of the opinion that an implied power exists. The evident purpose of the testatrix was to bestow bequests of personal effects and money upon her beneficiaries and to this end sought to have the executrix convert the only realty mentioned into money for division between the beneficiaries therein designated. It is clear also that the proceeds from the sale were not to be delivered by the executrix until the legatees became of age. She was also charged with an alternative disposition of the proceeds in event such legatees or either of them died during minority.
Section 518, Code 1942, provides that in such cases the directions of the will are to be followed, and where, as here, an executrix is directed to pay debts and legacies and when one of such provisions is to be carried out by a sale of specific lands a power to sell is to be implied. This view is strengthened by the language "after my house and the rest of jewelry have been sold." It is clear that it is to be sold for such purpose and that it is to be sold by the executrix is manifested by the direction that she should distribute the proceeds to the named beneficiaries, or in the event of the death of either, make "further distribution." First Baptist Church of Jacksonville v. American Board of Commissioners, 66 Fla. 441, 63 So. 826, Ann. Cas. 1916D, 404. See extensive supporting note thereto in Ann. Cas. 1916D, 404, 412, 419; 21 Am. Jur., Executors and Administrators, sections 689, 690, 692. If a will gives a power of sale to pay legacies or for distribution without stating by whom the sale is to be made, the executor takes the power by implication. Clark v. Hornthal, 47 Miss. 434.
The appellee contends, however, that since the taxes on the lands for the year 1943 are unpaid and remain a lien upon the property, he should not be compelled to accept a defective title. This is the only title defect asserted and in considering this contention we are not concerned with the question whether the bidder is entitled to a marketable title or whether the rule caveat emptor applies. Under Section 572, Code 1942, it was the duty of the executrix to pay the taxes thereon for the year 1943. The purchaser had the right to assume that the executrix had done or would do what she was under duty to do. Such obligation can be readily accounted for under decree for specific performance, in compliance with which the purchaser is entitled to a deed freed from the lien of the unpaid taxes for 1943.
Finally, appellee contends that there was no notice to interested parties, either in the proceedings for sale or those whereby directions of the court were sought. Since the executrix had power under the will to sell the land, the sale was not a judicial sale. Nor may the gratuitous advices given by the chancellor pursuant to request diminish the power of the executrix. Such sale needed no order of court to justify it. Buckingham v. Wesson, 54 Miss. 526.
Reversed and remanded.