The First Baptist Church of Jacksonville, a corporation, Appellant, v. American Board of Commissioners for Foreign Missions, a corporation, et al., Appellees, 66 Fla. 441

Whitfield, J. This appeal is from a decree dismissing a bill of complaint which prayed for the partition of lands. The questions presented are whether the will herein set out construed in the light of the circumstances surrounding the testatrix and the character of the realty, gave implied power to the executor to sell and convey lands of the decedent, and whether the appellant, a beneficiary of the will, is estopped from claiming partition of lands by receiving from the executor money derived from the sale of the lands.

The will is as follows: “I, Louise Johnson of Brownington, County of Orleans and State of Vermont, hereby make this my last will and testament, revoking all former will by me made. I dispose of my entire estate of which I may die seized after the payment of all legal charges thereon, as follows: I give and bequeath to Josephine S. Strait of Crown Point, Indiana, if living at the time of my decease, my stock in the New York Tribune Company. Said stock at this time being certificate No. 21 and standing in the name of Mary J. Robinson. If the said Josephine S.

Strait does not survive me, I give and bequeath one half of the proceeds from the sale of said stock to Cora Lincoln, (daughter of said Josephine S.) of said Crown Point, ind., and her heirs. I give and bequeath to the Trustees of the Woman’s National Indian Association, a corporation under the laws of the State of Pennsylvania, its successors and assigns, the sum of one hundred dollars, ($100.00). I give and bequeath to G. J. Gross, of Brownington, Vt., and his heirs, the sum of two hundred dollars ($200). I give and bequeath to Frank H.

Pierce of Austin, Illinois, and his heirs, the sum of two hundred dollars, ($200). I give and bequeath to Sarah M. Underwood of Glades, Morgan County, Tenn., and her heirs, the sum of two hundred dollars ($200). The residue of my estate, after the payment of the aforesaid bequests, I give and bequeath in four equal parts as follows: share and share alike. To the American Board of Commissioners for Foreign Missions. To the Congressional Home Missionary Society. To the First Baptist Church of Jacksonville, Florida. To the Union Congregational Church of Jacksonville, Florida. I hereby appoint G. J.

Gross, of Brownington, Vt., as Executor of this my last will. In testimony whereof I hereunto set my hand and seal and publish and declare this to be my last will and testament, this 3rd day of July, A. ID. 1902. Louis® Johnson, L. 8.” After the payment of debts and specific legacies there was personalty left, and the executor divided the remaining personalty and sold the land in controversy and divided the proceeds among the four residuary beneficiaries, including the appellant.

The sale of the land in controversy was without an order of court made by the executor to trustees for one of the four residuary beneficiaries, no bad faith being shown. An executor has implied authority to sell the real estate of the testator whenever it appears from the whole purview of the will to have been his intention that it should be sold and the proceeds applied to the purposes to which the, executor alone may apply them.

As a general rule an executor takes a power of sale by implication only when ii is necessary in order to carry out the provisions of the will, and not merely because it would be of advantage to the real estate. Where a testator directs the payment of debts and legacies with the proceeds of real estate, or othrwise manifests an intent that the proceeds of his real estate should be so used, the executor takes a power of sale by implication; but a power of sale is not implied solely from a direction that the executor pay debts and legacies.

A power of sale is also implied where real estate is devised to the executor for any purpose which is within the scope of his functions as such, or which require a sale, or where the residue is devised to him after direction to pay debts. But the executor does not take an implied power of sale where land is devised to another after payment of the testator’s debts. 11 Am. & Eng. Ency. Law (2nd ed.) pp. 1043-4.

It is not necessary that the power of the executor to sell lands should be expressly given in terms by the will, but it may be implied when it is clear that the testator intended that his executor should have such power, or the directions of the wills are such that a power of sale is necessary in order that they may be properly carried out: but the courts will not put a strained construction upon the language of the will in order to extract such a power from it when the testator’s intention to give or the necessity for such a power is not clear. 18 Cyc. 320.

Where there is an express- devise of land to persons named in the will, there can be no power of sale in the executor by implication. Gammon v. Gammon, 153 Ill. 41, 38 N. E. Rep. 890.

In this case a power to sell lands is not expressly given and such power is not necessary in order to carry out any of the provisions of the will; the testatrix did not direct that her debts and legacies be paid with the proceeds of sales of her real estate, and the will does not manifest an intent that the proceeds of lands should be used for debts or legacies; the land was not devised or bequeathed to the executor, and no directions of any kind were given to the executor; but by the terms of the will “after the- payment of all legal charges” on the estate after the payment of the specific legacies named therein, the residue of the estate is given and bequeathed in four equal parts share and share alike to designated beneficiaries not including the executor; and there is no clear implication from the context of the will of an intent that the executor should have the power to sell the land, or to divide the lands of the estate, the legal title to which passed to the beneficiaries upon the death of the testator.

As the estate consisted of personalty more than sufficient to pay the debts and specific legacies, and of real estate, including the land in controversy, which was willed “in four equal parts” to particular beneficiaries, the testatrix, having reference to the property she was disposing of, does not clearly appear to have contemplated a sale of the real estate by the- executor, to whom no special directions or powers other than those conferred by law, were given by the will.

Even if the land involved here was bought by the testatrix and held for purposes of speculation, she gave it “in four equal parts” to stated organizations that took the legal title and the beneficial interest at her death. Neither the will nor the law conferred, upon the executor power to sell real estate given and bequeathed by the testatrix to others. In Winston v. Jones, 6 Ala. 550, cited by appellee, the executor was by the will directed “to divide the sum total” of the residue of the estate, and directed “to distribute and pay over” the portion given to the beneficiaries.

In other cited cases there were directions to the executor to sell or to distribute. Here the executor is not directed to do anything. He can only do what the law itself authorizes; and under the law the executor has no concern in the real estate of the testatrix where it is not required to pay debts under the orders of the court. The executor does not divide real estate among devisees unless authorized to do so by the will, and there is no such authority in this case.

The receipt by the treasurer of the appellant of the money paid by the executor, and the circumstances of the payment and receipt are not such as in equity should estop the appellant upon doing equity as offered from asserting its rights under the will having the legal title to and the beneficial interest in a fourth part of the lands. The decree is reversed. Taylor, Cockrell and Hocker, J. J., concur.