Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-04-26

n
NAV be either "with or without no.
tice. as the testator may have direct
d, - and that If CORRECTIONS are given
as to the mode Of selling, or the
particular property 10 be sold,
such directions must be OBJ
served" We think that, as 10 the
question of notice, there is no ma
terial difference in the two statutes.
The earlier Utah statute was an ex-
act copy Of the California statute in
force prior TO July, 1874, and the
present Utah statute is substantially
the same as the California statute
which was adopted in that year.
Counsel for appellants refer us to
LARGO vs.. Casaneueva, so, vol. sol,
aud insist that, rs we adopted the
California statute, the rule there
laid down should control the deci-
sion in this case. In that case the
viii contained the following clause:
II hereby appoint my brother.
Francisco Casaneueva, my executor
Of this my last will, with power 10
sell, dispose OF, and convey all NV
said property, both real and per
sonal, for the benefit Of my said
sister, without obtaining any order
Of any court therefor. And /
hereby dispense with the neces-
sity Of his giving the bonds
required by law for the
faithful execution Of the trust here
by created" In that case It will
be seen that the power conferred
was upon the person named; that he
was authorized TO convert the entire
estate into money and reduce il 10
his possession. The court in that
case substantially held that it was a
power coupled with an interest. and
that, taking il altogether, it was APP
parent that he intended TO take the
execution Of his will wholly out OF
the possession Of the probate act, aud
that II was unnecessary for him 10
apply TO the court for authority TO
sell, or ask the court to confirm the
sale after II had been made. II the
will in this case should be construed
the same a. the will in that case,
then the order OF confirmation nov
sought TO be obtained would he I'M
necessary, as the executors could
proceed wholly independent Of the
Probate Court. But in the later
case Of the estate OF Durham. 80 Cal.
495, which arose under the former
statute Of California, which was
identical with our earlier statute |
and substantially the same as our
present probate act, the Court say: |
"When therefore, the will creates n |
naked power,-a power not coupled |
with an interest-theeX executors must |
give notice of the sale, returning ac- /
counts thereof, and unless there are
special directions ia the will. must /
conduct the sale in all respects as if
made under the order Of the Court.
In this case We must presume the
testator made his will in view Of the
provisions Of the statute in force at
the time he wrote il. He devised
his property in fee 10 his children,
and conferred upon his executors
the mere power 10 sell as much OF
his property rs may be necessary 10
carry out the provisions Of the will.
and authorized them 10 sell at either
public or private sale, in their dis
AAIN XIV AAANAAA AAN AAAAEA us u
cretiOn in the conduct Of the sale,
md gave no directions as to how
he sale should he conducted. He
lid nothing indicating an intention
% take the execution uf his will out
II the probate act. The power 10
ell his property is conferred upon
his executors, whoever they may be,
md is not conferred upon the execu-
ors in this will 10y name. The APP
ointment Of the executors is a
eparate and independent provision.
He must have male it with the un-
Outstanding that who ever executed
he viii would be required TO comply
With the provisions Of the Probate
Act, and that Il would be under the
OF the Probate Court.
{ Is reasonable 10 conclude when lac !
the executors 10 sell at ,
ubiic or private sale, he meant the ,
ind Of private sgle provided for in
he statute and which required that
Iotice should be given. Ifhe had
Intended that these sales be made
Without notice, il is reasonable 10
he would have 80 stated.
We are OF the opinion that the ,
7ill in this case cJnfers 4 mere /
aked power upon the executions; ,
hat II authorizes them TO determine ;
'hether sales Of property shall lie at !
ublic or private sale, but that, I'm !
'hich ever way they proceed, the !
ale must be conducted pursuant 10 :
be statute, aud that the statutory
office not having been given Of the &
i'es in controversy, they are in ,
aid.
The Judgment Of the District
curt is affirmed. /
We concur: Zane, CD, Blackburn, I
). ]. I