Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-04-26
DIsPosING OF ESTATES.
A Ruling of Importance 10 Ad-
illustrators.

date deliver the courts opinion
This afternoon the judge completes
and filed the following as the court
ruling:
In the Supreme Court Of the Ter
ritory of Utah in the matter Of tn,
estate Of Samuel Sharp Walker
deceased.
Appeal from the Third Distric
Court, Henderson, Judge.
Marshall & Royle, attorney foi
the executor.
W. H. Dickson, attorney for tn,
purchaser.
P. L. Williams, Apacss Criae.
ANDERSON, j. This is an ap
peal from a Judgment Of thG
Third District Court refusing to con
firm certain sales Of real esfats
made by the executors Of Samuel )
Walker, deceased. The deceased
died September 10th, 1857, in Salt
Lake County in this Territory seize,l
OF large amount Of real estate. He
left a widow and six children. He
left will made in 1852, by which
he devised to his widow, during her
natural life, one-third Of all his
estate, and the balance Of his estate
TO his children. He also directed in
his Will that his executors pay to
each Of his children, on attaining
the age ofmsiority, the sum of five
thousand dollars. The seventh
clause ofthe will Is as follows
"Seventh:-The executors Of this
viii shall have power TO sell either
at public or private sale, In their dis
erection, any portion Of my estate for
the purpose Of effectuating the inten-
tons and commands hereof.s
The last clause Of the will is as
follows:
''Lastly:-I hereby appoint my
brothers, Joseph r. Walker and
Matthew II. Walker Tor in case Of
the death Of either Of them, the
survivOr) the executors Of this NV
last will and testament; and neither
Of them shall be required to give
bonds for the faithful performance
Of their duties hereunder.,
The viii was duly admitted to
probate, and the executors named
entered upon their duties, and in
their capacity as such executors
made various contracts for the sale
Of portions of the real estate for the
purpose Of paying Off the indebted
ness OF the estate. These contracts
were reported by the executors to
the probate court, and an order was
asked confirming the sales and no.
tees were given pursuant to the
statute that a hearing would bc had.
Upon the hearing the probate court
refused 20 confirm the sales because
no notice OF such sales had been
given by the executors, and the ex-
ecutoTs appealed from that order 10
the district court. Upon the hear
ing in the district court Il was
shown that the several parcels of
real estate had been sold by the ex-
ecutOrs at private sale without no.
dce. The widow and some Of the
children testified ;ha. the sales
we're fair, that they were in the in.
terest Of the estate and that no one
was opposing the confirmation. The
court found that the executors had
acted in good faith and that the
sales had been fairly made, but de-
MED the motion Of the executors 10 1
confirm the sale because no notice
had been given. From this order 4
the executors have appealed 10 this |
court, and the sole question IRE
sented for our determination is. |
whether the executors had the /
authority, under the will, 10 make 1
tie sales without advertising, before
the sales were made.
At common law the power and /
given under 4 will was
exercised the same as any other |
and the will was to be /
looked TO and consulted ON theques-
ton Of power. the same rs where 4
party acted undera power Of attor-
ley, and it was unnecessary 10 have
he aid Of the Probate Court in exc
,utiDgit; but in this Territory, while
he right to dispose of property by
will is not limited by statute, the
-tatutes regulate the exercise OF the
light and prescribe the manner in
which, in certain cases, the author
~ conferred by the viii may be
by the executors.
The statutes Of this Territory in
egard 10 the settlement Of estates Of
iecedents provides that. ''No sale
( any property Of the estate Of a
.ecedent is valid unless made under
N order Of the PROBATE Court, ex-
eit as otherwise provided in this
.hapter. All sales must he reported
lnder oath to and be confirmed by
he court before the title Of the prop
-ty sold passes" Compiled Laws.
Sec 4li5. Other sections OF the
tatute prescribe what the order OF
ale shall contain, the notice OF sale
nat shall be given, the return Of
he sale to the court, the manner in
which sales may be confirmed and
he notice that shail be given Of the
for the order Of confirma-
len. The statute provides with
much particularity the mode Of pro-
edure In all cases Of sale OF the real
state Of decedents, where there is
10 will, or where the viii fails 10
ireCt how sales shall be made. The
TO the mode Of sale pre-
cribed in the statute, referred TO in
ection il55. are found in sec. 4ISI.
nd are as follows:
"When property is directed by n
gill to be sold, or authority is given
y the will TO sell property, the ex-
eutor may sell any property Of the
state without orier Of the court, and
t either public or private sale, and
With or without notice, as the tesla
or may have directed; but the ex-
cutOr must make return Of such
ales, as in other cases: and il direc-
ions are given in the viii as TO the
node OF selling, or the particular
TO be sold, such directions
must he observed. In either case
10 title passes unless the sale is con-
irmed by the court"
Where a viii confers upon an
Executor a power coupled with an
or the fee in the estate is
Ieyised to the executor in trust for
he benefit Of other persons. and the
Of the testatOr 10 take the
of his estate out of the
ROTATE act is clear, the interest
-ested in the executor and the
over and authority given him by
he will, authorize him, after the
viii has been probated, to proceed
o sell real estate il the manner
ERECTED by the will without obtain
ng an order Of sale from the Probate
'ourt, and without giving the
iatutory notice Of such sale, and
'ithout asking the court for an order
T confirmation.
Estate Of Delaney 80 Cal. IS.
Payne VS.. Payne IS % 992.
Norris VS.. Harris Is 255-6.
LARGO VS.. Casaneuvo 80 SIS.
Estate OF Durham 40 455.
But a different rule prevails where
ne will confers upon the executor a 1
lere naked power not coupled with
ny interest. In such a case, If !
Ithority TO sell is given by the will, {
: the viii directs a sale Of property,
u order Of sale by the court is un-
acaSsarv and the expcutOr may 1