The following dissenting opinion was delivered by
Young, J.In dissenting from the opinion of a majority of the Court, it is only necessary to premise, that I rest my opinion on a reasonable and proper construction of our own Statute of Wills, and not upon decisions predicated upon the common or statute law of England, or the statute laws of our sister States, differing in a more or less degree from our own.
The testator,- Thomas Payne, made a will, dated the 4th day of September, 1835, by which he directed that all his land and-personal property should be sold by his executor, for the interest, support and education of his children, with direction that distribution should be made of the remainder in .equal proportions among them, as they respectively married or became of lawful age, &c.; the land not to be sold until it would produce eight dollars per acre, and some further discretionary power to be exercised by his executor, in the application of the proceeds of the sales of his property as provided for, and limited by his will. The testator then died without naming an executor. Letters of administration with the will annexed were granted to Benjamin H. Gatton, the 9th of September, 1835,- who gave bond on the same day, in the penalty of $1000, and sold the land in question, to wit: the west half of the north east quarter of section nine, and the west half of the south east quarter of the same section, in township seventeen north, of range ten west of the third principal meridian, containing 160 acres, as such administrator, by virtue of the authority contained in the will, to the defendant, Henry H. Hall, for the consideration of $1400, being $120 more than- $8 per acre, as required by the will. Gatton received the consideration money, made a deed of conveyance to Hall for the land, and Hall immediately thereafter entered into possession by virtue of such sale and purchase, and has remained in possession ever since. The heirs of Payne, the testator, having brought their action of ejectment against Hall, now seek to invalidate his purchase and deed from Gatton, upon the ground that Gatton, as such administrator, had no power to sell the land.
The nineteenth section of the Act relative to Wills, &c, Rev. Stat. 540, provides, that “ when there shall be no executor named in the will, letters of administration, with the will annexed, shall be granted to such person or persons as may he entitled thereto.” In this case, no ex-cutor was named in the will by the testator, and Gatton, on proving the same, was appointed administrator with the will annexed, by the Court of Probate, as the person entitled thereto.
The twenty seventh section of the same Act provides, that “administrators, with the will annexed, shall, before entering upon the duties of their administrations, enter into bond with security to be approved by the Court of Probate, in a sum double the value of the estate, payable to the People of the State of Illinois, for the use of the parties interested, and conditioned generally for a proper and faithful discharge of such duties as are at the time of executing the bond, or may thereafter be required of them bylaw.” The condition of the bond contains among others, the following clause: “and to well and truly fulfil the duties enjoined on him by- the said will.” There is also another clause to the following effect: “and shall moreover pay and deliver to the persons entitled thereto, all the legacies and bequests contained in the said will, so far as the estate of the testator will thereunto extend, according to the value thereof, and as the law shall charge him.”
I contend that according to these provisions in the statute, that there was a power coupled with a trust, by the provisions in the will, and not a mere naked power, which, on the failure of the testator to name an executor, as in this case, devolved upon the administrator with the will annexed. The testator provides expressly by his will, that both his real and personal estate shall be sold, and the whole to be converted into money. This money is first to he applied in the support and education of his children, and the surplus afterwards distributed by way of advancement to each, as they shall respectively become of age or marry. He expresses no intention, that either his land or personal property shall be distributed among his children. The law certainly intended, by a fair construction of its language, that the administrator with the will annexed should, in such cases, fulfil and discharge all the duties which would have devolved upon the executor, if one had been appointed, as were enjoined upon him by the will.
The legislature by these enactments, doubtless anticipated that frequent cases would arise, where, from various causes, the testator might forget or omit to appoint his executor,' as in this instance, and have amply provided for such omission.
But the counsel for the defendants in error have said in the argument, that in this case a trust and personal confidence was intended to be reposed in the person of an executor, which will not apply to an administrator thus constituted, between whom and the testator no such friendly relations can be supposed to have existed, as with the person intended to have been appointed his executor. May not the same argument be used against the appointment of a trustee by a Court of Chancery, to execute this portion of the will? The only difference is, that the one is appointed by the Probate Court, while the other would be appointed by a Court of Chancery. The legal presumption in either case would be, that the appointment would be made in reference to the provisions contained in the will, the magnitude of the trust confided, and the discretion and integrity of the person appointed.
The bond in either case would be in proportion to the value of the estate, and the like presumption would arise in the one case as the other, that none other than good and sufficient security would be required or received.
The forty second section of the same Act also declares, that “all such estate, both real and personal, as is not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate; but in all such cases the executor or executors, administrator or administrators with the will annexed, shall have the preference in administering on the same.”
Here again, real estate, eo nomine, is confided to the administration of the administrator with the will annexed, to the exclusion of an ordinary administrator, and with a control as unlimited and unrestricted as is given to an executor under the like circumstances.
By sections twenty six, twenty seven, and sixty six, the same oath is required to be taken by an administrator with the will annexed; a bond the same in substance and in form to be given; and letters of administration with the will annexed, similar in all respects, to be granted, as are taken, given by, and granted to an executor; and taking the Statute of Wills throughout all its provisions, and I can no where find that any difference is made between the powers and duties of an executor, and those of an administrator with the will annexed.
Section ninety three provides, “that in all cases where power is, or may be given in any will, to sell and dispose of any real estate or interest therein, and the same be sold and disposed of in the manner and by the persons appointed in such will, the sales shall be good and valid; and when any one or more executors shall depart this life before such sales be made, the survivor or survivors shall have the same power, and their sales shall be as good and valid as though they all had joined in such sale.”
I quote this section for the purpose of illustrating the fallacy of the opinion of Mr. J us tice Cowen, in the principal case relied upon by the counsel for the defendants in error, as reported in 21st Wendell’s Reports. For as well might it be contended, notwithstanding our statute expressly declares, that “ the survivor or survivors of two or more executors shall have the same power to make sales of land under a will, and that their sales shall be as good and valid as if all had joined in such sales,” that such sales, if made, would, nevertheless, not be good, because Mr. Justice Platt said, in the case of Franklin v. Osgood, 14 Johns. 527, 553, which Justice Cowen says was a well considered cause, “ that it was clear by the common law, a naked power given to executors to sell lands, would not survive;” that to contend that the powers and rights of an executor were not by the statute of New York, conferred upon an administrator with the will annexed. That statute declares that “in all cases where letters of administration, with the will annexed, shall be granted, the will of the deceased shall be observed and performed; and the administrators with such will annexed shall have the rights and powers, and be subject to the same duties, as if they had been named executors in such will;” and yet the opinion of the Court, as pronounced by Mr. Justice Cowen, in 21st Wendell, decides that the powers and rights of an executor are not by that statute conferred upon an ■ administrator with the will annexed.
The numerous common law authorities referred to by the Court to sustain their opinion in that case, although entitled to great weight and consideration in determining the proper construction of a statute, should not be allowed to outweigh the express provisions of such statute, when inconsistent with such authorities; and when too, in many instances, the very object of the Legislature, in changing, amending, or repealing the former laws upon the subject, has been to supply the defects and omissions, and to provide against the hardships and mischiefs mentioned by the judges, as reasons for their decisions.
It seems to me, with all proper respect for the high authority from whence the decision in Wendell emanates, that it is in the very teeth of their statute, and supported by decisions, for the most part, which were made in the absence of all such statutory provision as has been mentioned.
Again, the counsel for the defendants in error, in speaking of the personal and confidential relations supposed to exist between an executor and the testator appointing him, have argued this case as though the “little children,” as they are called, were to have been taken home by the executor, if one had been appointed, and clothed, and fed, and educated by him as such executor, in loco parentis, in all respects, and with all that fidelity supposed to arise from the confidential relations presumed to have existed between him and the testator, as the reasons for appointing him.
Is this so? Would the appointment of an executor in this case, according to the provisions contained in the will, have rendered it improper to have appointed a guardian for these children? I apprehend not. It is true, that by the seventeenth and eighteen sections of the statute in relation to guardian and ward, Rev. Stat. 268, “every father of sound mind and memory, may, by his deed or last will, dispose of the custody and tuition of his children during their minority.” But such a provision in the will would constitute the person appointed a guardian pro tanto, and not an executor properly as such, as the statute declares in such cases, that the person appointed thereby becomes invested with all the rights and powers, and subjected to all the duties and obligations of a guardian, under the restraints and regulations mentioned in the will, and imposed upon him by law; and this person maybe an entirely different person from the executor.
It will not be contended, I presume, that these last named powers and duties are conferred upon the executor, to have been appointed by the provisions contained in this will. It follows then, that guardians at all events would have to be appointed, and guardians, it appears, by the names of the parties plaintiffs in the Court below, were appointed, although an executor might have been named in the will. It is the guardian, and not the executor, who is to have the care, custody and education of the children; and much of the trust and confidence supposed to have been imparted, or rather intended to have been imparted to the executor in this case, in regard to those “little children,” has been properly confided to their guardians as was contemplated by the law. This having been done, what remained for the administrator with the will annexed, to do? Simply to sell the land and personal property, and apply and distribute the proceeds as directed by the will. The guardians would have received the amount necessary to support and educate their wards, from the hands of the administrator; and the further duties of making a proper application of the amounts thus received, would have devolved upon the guardians, as trusts to be executed according to the intentions of the testator, and in the manner enjoined on them by law. I can perceive no necessity, therefore, for the appointment of a trustee by a Court of Chancery to execute any of the provisions contained in this will. But no application has been made to’ a Court of Chancery for the appointment of such a trustee, either to sell the land, orto apply and disburse the proceeds after such sale shall.be made. No complaint has been made that the estate has been squandered by the administrator, Gatton; or that he and his securities are not fully able to account for any deficiency which may possibly accrue, by reason of a supposed delinquency. The heirs commence their action of ejectment in the first jnstance against Hall, to recover possession of the land of their ancestor sold to Hall by the administrator, when no land, by the will of their father, was ever intended to have been distributed among them; and when too, the presumption arises in the absence of proof on that subject, that they have already been supported and educated out of the proceeds of the sale of that land to the man, they now seek to eject from his possession.
It appears to me that if injustice has been done to these children, and the estate of their ancestor has not been sold arid the proceeds distributed according to the provisions in the will, that their relief is by a Court of Chancery, where Gatton, Hall, and all persons interested could have been made parties, and the intentions of the testator, if necessary, carried into execution by a trustee to be appointed by such Court, and not by action of ejectment. By this mode of proceeding, the intentions of the testator in respect to the manner of disposing of his estate will be defeated, and the acts of the administrator annulled, although he is not a party to the suit.
And what are to be the consequences of vacating the acts of the administrator, and setting aside the deed to Hall in this collateral way? Will Hall, in addition to the loss of the purchase money, and interest upon it for ten years, be also subject to the payment of rents for his use and occupation of the land, for the time he may have occupied it since his purchase from the administrator? If so, his loss will, indeed, be ruinous. Or will he be allowed a just compensation for his improvements, after the rents and profits shall have been deducted? These are questions of no light import to a man in moderate circumstances, as may be the ease witli the plaintiff in error in this suit, and worthy of serious consideration; and, finally, if an administrator with the will annexed may perform certain duties and exercise certain powers under a will, and may not perform and exercise others, who is to determine upon the line which separates these powers? Where shall he commence to execute his duties, and where must he stop? It appears to me that a difficulty will be presented by these considerations, which will, in many cases, make it hazardous for the administrator to act; and still more so, for any person to purchase any of the real estate of the testator from him, until a Court of Chancery shall have first determined whether or not the administrator under the will has the power to dispose of it, as it might have been disposed of by the executor, if one had been appointed, or not.
As ample provision appears to me to have been made fox-such a contingency as has arisen in this case by our statute, I cannot perceive that either justice or equity will be promoted by annulling the acts of the administrator, and confiscating the rights of an innocent bona fide purchaser, for a full and valuable consideration, after the lapse of ten years, where no fraud is imputed to him, and where all the proceedings, for aught that appears in the record, seem to have been conducted according to the forms prescribed by Iaw«