Romaine v. Hendrickson's Executors

The demurrer is special and general. The objection to the prayer for answer, on oath, to the interrogatories appended to the bill, is not well taken. Those interrogatories may be regarded as incorporated in the bill. In the prayer for answer, they are referred to. The complainant’s right to require a particular answer to particular interrogatories, based on the statements and charges of the bill, is undoubted.

As to so much of the demurrer as goes to the right of the complainants to maintain this suit: It is insisted that the complainant, William G. Romaine, has no interest in the subject of the controversy; and, although his father, James H. Romaine, has an interest, it is as administrator of his late wife, the testator’s daughter Alice, which is not the capacity in which he sues.

The position of the defendants’ counsel is, that under the will Alice had no title to the lands therein mentioned, except in trust for the purposes declared by the will, which, he insists, are the use of the property by testator’s family, as a family, until sale should take'place, and the sale of the property by the executors, and the investment and disposition of the proceeds according to the directions of the will. That therefore the husband of Alice could have no curtesy. That if he had, the bill does not aver seizin of the wife. That the property was, by reason of the direction to convert, from the death of the testator, money, and therefore the husband of Alice is entitled to all of her interest therein, and her child has no interest.

A part of the relief sought by the bill is, that the fraudulent conveyances by and to the executors, as to so much of the land as has not been conveyed to bona fide purchasers, may be set aside, and that that land may either be sold, or the executors decreed to collect the yearly rents and profits of it, and, after payment of the testator’s debts, pay one-fifth thereof to the complainant, James H. Romaine, during his lifetime.

On the testator’s death the title to the land descended to *237his children in equal shares, subject to the disposition made of it by the will for the use of the family as such, and the receipt by the executors of the surplus rents and profits during such use, and to the naked power given to the executors. The power of sale is not one that is to be exercised on the happening of a certain event, or at a given time, but is wholly discretionary, not only as to the time of sale, but as to whether the sale shall ever be made. It may never be exercised. It is a power and not a trust. The land was not devised to the executors; and in the meantime, until the sale, the title is in the heirs, and they have power to transfer their interest in it, at all events, so tar as to entitle the alienee to all their rights, whatever disposition should be afterwards made of it. Den. v. Snowhill, 3 Zab. 447; Den. v. Creveling, 1 Dutcher 449; Herbert v. Ex’r of Tuthill, Saxt. 141 ; Gest v. Flock, 1 Green’s Ch. 108; Fluke v. Fluke’s Ex’r, 1 C. E. Green 478.

The husband of Alice was therefore entitled to his curtesy in her share of the land. She was not a mere trustee. The seizin of her co-tenants in common, the occupants of the land, was hers also. The bill states that ever since April 1st, 1868, Samuel and William have been in possession of so much of the land as has not been conveyed away by them. Alice died in 1872. Her seizin appears sufficiently from the statements of the bill. At her death her share descended to her son, subject to her husband’s curtesy, and subject also to the power of sale.

The direction to convert not having been absolute, but wholly discretionary, the land was land and not money, until the conversion should actually have taken place. Gest v. Flock, supra ; Cook’s Ex’r v. Cook’s Adm’r, 5 C. E. Green 875; 1 Jarman on Wills 530.

The fraudulent conveyance by the executors to the prefunded purchaser at the sale of April 1st, 1868, cannot, as to so much of the land as has not been conveyed to bona fide purchasers for valuable consideration without notice, be held to be a conversion. It may be set aside by this court. As *238to that part of the land the power has not been executed, and this court will treat that part of the land as though the sale had not taken place. As to that land, the husband and heir-at-law of the testator’s daughter, Alice, as part owners of the land, have a right to ask that the fraudulent conveyances be set aside. They are proper parties complainant to a bill for such relief, and therefore to this bill. Inasmuch as the conversion has not taken place, the rights of the complainants are not affected by the fraudulent conveyances under which Samuel and William claim to hold the property. They are entitled to be relieved against those conveyances, if the statements of the bill be true, as they must be taken to be, on the consideration of the question raised by the demurrer. They are entitled to the discovery which the bill seeks on that head. It is not an “ absolute, certain, clear proposition that the bill would be dismissed with costs at the hearing,” but on the other hand, it is clear that if the statements of the bill be sustained, the conveyance from the executors to the purchaser, at their sale, and his conveyances to Samuel and William, would, as to so much of the land as the latter had not conveyed away, be set aside as fraudulent.

There being a part of the bill both as to the relief and discovery, to which the defendants ought to put in an answer, the general demurrer must be overruled.

Demurrer overruled, with costs;