The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1902-02-11
THE SCRANTON TR1BuNE-TUEsDAY FEBRUARY H. 1902

tate No. 1lS North Garfield avenue,
Scranton, Pa together with the houses
hold furniture and fixtures therein and
thereon, contained, during her natural
life, providing she does not re-marry.
After the demise of my said wife. Mary
Ann, the said real estate and effects
Herewith as hereinbefore referred to. I
direct my executors hereinafter named
to sell the same at the best possible
advantage and divide the proceeds OF
the same equally between my five
daughters, etc, ETC."
He also directed his wife "To keep
real estate In good repair so long as by
this my will she may have control of
the same. but in the event that she
fail to do so, and the said real estate
be allowed by her to run down and de-
preciate by neglect of repairs, payment
of taxes or in any other way, then
my executors to take charge of the
same and keep the property in repairs
for the best use and interest of my said
five daughters hereinbefore named"
In discussing the history of the case,
Judge Nosburg says:
The testator named Richard Nichols and Evan
j, Davis as executors, and these gentlemen have
performed the duties OF their trust with care and
fidelity, and have had the benefit OF the advice
of able counsel. They have, however, been con.
Tonted with an obstacle to the literal fulallment
of the directions in the WILL with reference TO the
real estate referred to, for the reason that an py-
animation Of the records has disclosed the fact
that the testator apparently had no title to this
property. although he very evidently considered
himself the owner of it, What circumstances I'm.
derlie this transaction have not been fully as
ccrtained, although IL has been suggested that
the testator may have had an unrecorded deed or
declaration of trust in his possession which vested
title in him, to the land in question. No such
papers have come into the possession of the cv.
ocuiorS however, and they have 10 evidence upon
which they could hope to successfully assert the
title Of the testator in an action of ejectment
In the dilemma which thus confronted them,
the executors have very properly placed the matter
before the court, SO that their rights and iuties
IN the premises may be legally defined In or.
der to raise this question, formal request was
made before the auditor. that the sum of one
hundred and fifty dollars be set aside for the use
OF the executors to defray the expense of sale
Of the property on Garfield avenue. This was
objected to, and the auditor declined to make the
allowance asked for. Exception was taken to the
auditors report upon this point, and this pre-
sents the question at issue in this proceedings
The exception is, that the auditor erred in hi,
first conclusion of law, to the effect that the
title TO the Garfield avenue property is vc.t ID
absolutely in Mary Ann league. and that the pro-
visions OF the will relating to it. are void. 1t
Is true that there was evidence introduced
to show that George league paid for this prop.
ettv; but assuming this 10 be the case, il lie
allowed the title deed to he made in the name Of
his wife this would operate as gift from him TO
her such conveyance is valid, except as
against creditors whose rights might be af-
iectcd by such transfer.
The only matters the court can properly con.
Sider, are those which appear in the evidence
offered before the auditor and have been unable
to find sufficient in this evidence to establish a
trust III the testator in the Garfield avenue
property.
1t seems to me that The executors in this ease
have been well advised not to bring an ciectnient
suit. Under the evidence taken before the aud.
ior. the action would undoubtedly be non.
suited, as there is not sufficient to make o,,t a
'prima facie' case. Although | find no author.
ltN which rules the question squarcly, | am in
cllned TO lay down the rule that an executor
with power to sell real estate, the title to which
Is IN dispute should moi bring eectment for it,
unless he has evidence to make out prima facie
case for the consideration OF jury. | therefore
hold that the executors are not bound. under
the evidence in this case, to bring any legal pro.
cccdingS 10 recover this property.
'"l'i'ot hoiu tlat thc mere TACT that eTccU
tors arc directed to sell land which the testato,
does not own, carries with it any obligation ia
make the sale thus authorized. To take an eN.
IRENE instance, suppose man who had no real
estate interests whatever, should direct his cX
ec'tors to sell several valuable properties Suc!
as the Hotel Jermyn property. the Mears Guild
ing. or the Connell building. No one would CON
tend that the executors would be bound to carry
out such directions. In fact. court Of aouity
or the orphans court, would undoubtedly re-
strain them from thus placing cloud upon the
TILE OF the real owner. The executors are moi
honnh to take this step in the present ease, and
the allowance for the cNnensc Of SO doing was
therefore properly refused by the learned auditor
The exceptions TO the report of the answer are
overruled, and distribution tlecreed in accordance
Herewith