The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1890-04-27
EXECUTORS POWERS
The Law Governing the Sale of
Properly of Decedents.
DECISION IN THE WALKER CASE.
The Supreme Court Sustaius Judge Henderson
and the Probate Court-An Interest
ing Opinion.

At the last session of the territorial SUI
preme court, Judge Andersen announced
that in the matter of the estate of S. S.
Walker, deceased, the decision of Judge
Henderson, affirming the ruling of the pro-
bate court in refusing to confirm certain
sales of real estate, was affirmed and that the
opinion would be filed later. Judge Ander-
sons opinion was filed yesterday and is as
follows:
In the Supreme court of the territory of Utah
in the matter of the estate of Samuel Sharp
Walker, deceased.
Appeal from the Third district court, Hender-
son. judge.
Marshall & Royle, attorneys for the executor
W. ii. Dickson, attorney for the purchaser.
z. l.. Williams, dDaicl4S ct,ide.
Anderson, j. This is an appeal from a judg-
ment of the Third district court refusing to
confirm certain sales OF real estate made by the
executors of Samuel S. Walker. deceased The
deceased died September 10, 1887, in Salt Lake
county in this territory seized of large amount
OF real estate. He left widow and six chill
dren. He left will made in 1882 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
ms VIII that his executors pay to each of his
children, on attaining the age of majority, the
sum of 5000 dollars. The seventh clause of
the will is as follows:
Seventh executors of this will shall
have power to sell either at public or private
sale, in their discretion, any portion of my es-
tate for the purpose of calculating the inten-
lions and commands hereof"
The last clause of the Wilt as follows:
Lastly hereby appoint my brothers,
Joseph X. Walker and Matthew H. Walker Cor
in case of the death of either of them the sur
v1vor) the executors of this my last will and
leStamenti ana neither OF them shall be re-
quired to give bonds for the faithful perform
ance of their duties hereunder
The Will 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 in
debtedneSS OF the estate. These contracts were
reported by the exectors to the probate court,
and an order was asked confirming the sales
ana notices were given pursuant to the
statute that hearing would be had
Upon the hearing The probate court
refused to confirm the sales because no notice
of such sales had been given by the executors,
and the executors appealed from that order to the
district court Upon the hearing in the district
court 1t was shown that the several parcels of
real estate had been sold by the executors al
private sale without notice. The widow and
some of the children testified that the sales
were fair, that they were in the interest of the
estate ana Ihat no one was opposing the con-
firmatlon. The court found that the executors
had acted in good faith and that the sales had
been fairly made, but denied the motion of the
executors to confirm the sale because no notice
udu DCtH SNtu TOn lnlS OrQer the executors
have appealed to this court and the sole cues
tlou presented for our determination is whether
the executors had the authority, under the will
TO make the sales without advertising, before
the sales were made
AT common law the power and authority
given under will was exercised the same
as any other authority, and the will was to be
looked to and consulted on the question of
power, the same as where party acted under a
power OF attorney, and il was unnecessary TO
have the aid of the probate court in executing
IL; but IN this territory while the right to dis
pose OF property by VIII is not limited by
statute, the statutes regulate the exercise of
the right and prescribe the manner in which in
certain cases, the authority conferred by the
will may be executed by the executors.
The statutes of this territory in regard to the
settlement OF estates of decedents provides that
No sale OF any property of the estate of dece-
dent is valid unless made under an order of the
PROBATE court, except as otherwise provided in
this chapter. All sales must be reported under
oath 10, and be confirmed by the court before
the title OF the property sold passes. Com
plled laws, section 4l45. Other sections of the
statute prescribe what the order of sale shall
contain, the notice of sale that shall be gwen,
the return of the sale to the court. the manner
IN when sales may be confirmed and the notice
that snail be given of the application for the
order OF confirmation. The statute provides
with much particularly the mode of procedure
In all cases of sale of the real estate of dece
dents, where there Is no will, or where the will
falls 10 direct how sales shall be made. The cx-
ceptions to the mode of sale prescribed in the
statute, referred to in section 4l45 are found in
section 4lSl, and are as follows
when property is directed by will to be
sold, or authority is given by the will to sell
properly, the executor may sell any property of
the estate without any order of the court and at
either pubilc or private sale, and with or with
out notice, as the testator may have directed
but the executor must make return OF such sales
as in other cases; and if directions are given in
me VIII as to the mode of selling, the particu-
lar property to be Sold such directions must he
observed n no In ,.1@ee
the sale is confirmed by the COURT
Where VIII confers upon an executor a
power coupled with an interest or the fee in the
estate is devised TO the executor in trust for the
benefit of other persons, and the intention of the
testator 10 take the management of his estate
out OF the probate court is clear the interest
vested IN the executor ard the power and au-
thorlty given him by the will, authorize him.
after The Will has been probated, to proceed to
sell real estate in the manner directed by the
VIII without obtaining an order of sale from the
probate court, and without giving the statutory
notice OF such sale, and without asking the court
FOR an order of confirmation.
Estate of Delaney 49 Cal. rs
Payne VS.. Payne Is ~ 2g2
Norris VS.. Harris III 255-5
Marco VS.. Casaneuvo 80 5SS.
Estate of Durham 40 50 49,
But different rule prevails where the will
coniers upon the executor mere naked power
not coupled with any interest. In such a case.
II authority to sell is given by the will or the
Will directs sale of property, an order of sale
ny tne court is unnecessary and the executor
may sell without such order, in the manner
directed by the teStator. But if the testator
has given no directions in the will the case
comes within the provisions of the probate act
and the sale must be conducted under the
orders OF the probate court and in accordance
with the statute. Estate of Durham supra In
this case it is not commended that the will con-
fers anything more than mere power. The
executors have so treated il, and have in all
respects complied with the statute except that
no notice was given of the sale. But counsel
for appellants contend that the will authorized
the executors to sell without notice if in the ex-
ercise of their discretion they determine to sell
in that way; that the language of the will.
authorizing them to sell, '.either at public or
private sale at their discretion left the cues.
ton o. notice as much in their discretion as the
question whether the sale would be public or
private
AT the time this was made the statute of this
territory provided that an executor should give
notice of the sale of property, the same as an
administrator, unless there were special dir
ections given in the will, in which case he was
TO be governed by such directions The pres.
ent statute provides that the sale may be either
with or without notice, as the testator may
have directed" and that if direction are given
as to the mode of selling, or the particular
property to be Sold such directions must be OBJ
served" We think that, as to the question OF
notice, there is no material difference in the
two statutes. The earlier Utah statute was an
exact copy of the California statute in force
prior to July. 1874 and the rrecopt ITtab o+of