Walters v. Walters

Bussell, C. J.

(After stating the foregoing facts.)

In giving the reasons for the judgment of dismissal the judge states in his order that the plaintiff has only a contingent remainder in the estate, and for that reason, if for no other, he has no cause of action and can not stop the sale of the land which the petitioner was seeking to enjoin. The judge placed the dismissal upon the ground that the plaintiff’s interest in the land was insufficient to enable him to prosecute his action. Begardless of the reason assigned by the judge, we shall affirm his judgment, because for another all-sufficient reason we think the conclusion reached by him was correct. Begardless of the plaintiff’s interest in his father’s estate, whether a mere contingency, a vested remainder, or a vested remainder subject to be divested, the demurrer was correctly sustained. The whole purpose of the plaintiff’s case was to enjoin the sale of two certain pieces of realty. The plaintiff did not ask the construction of the will, and he could not, because this right appertains alone to the executrix. The pláintiff appears in his individual capacity. He attached to his petition a copy of the will, and the defendant demurred to the petition as a whole. Consequently the whole will was before the court. Under its provisions the question was whether the executrix had the right to sell the property referred to. The judge was authorized, by the provisions of item 5 of the will, to hold that the powers conferred upon the executrix authorized her to sell, not only the property referred to in the petition, but all the property of the testator except that mentioned in item four. Under these circumstances it was unnecessary to construe the will. Item 5 contains the following provision: “If said executors desire to sell any part of my estate, or all of the same, they are given power to do so, at public or private sale, with or without advertisement, and without the order of any court, as they think best.” As of the executors named Mrs. Walters alone qualified as executrix, we hold that this provision gave her solely absolute power of sale.

The executrix, by pressing the decision upon the demurrer, herself cut oil the limb upon which her request to construe the will rested. When the petition was dismissed by sustaining her general demurrer (no matter on what ground), the answer fell, and there was therefore nothing before the court which would authorize a construction of the will. The judge was authorized to dismiss the petition on the power of sale contained in the fifth item. At any rate, we hold that he could have acted upon the power of sale contained in that item, and therefore it was unnecessary to rule upon the question as to the interest of the plaintiff in the estate of his father at that future time when his mother, the executrix, shall have died and when for the first time the estate is subject to .distribution. Of course, in passing upon the demurrer the court did not have before it and could not consider the answer of the defendant. The defendant’s demurrer could only be used to decide the allegations of the petition. With the fall of the petition fell the answer, thus rendering it impossible for the judge or for this court to construe the will. If the executrix desires a construction of the will, a petition praying instruction will reach and accomplish the desired end.

Judgment affirmed.

All the Justices concur, except Hill, J., absent on account of illness.