Mills v. Connor
Mills v. Connor
Opinion of the Court
The plaintiffs as trustees under the will of Mike Bouzon seek an order of the court requiring the defendant who is the owner of the five-story business property in question to perform his contract to execute a lease to them on such property for a period of five years. Before a decree may be properly entered requiring the execution of the lease by the defendant it must clearly appear that the plaintiffs have the right to such relief and are entitled to have the conveyance of the premises for such term, and also that they themselves are duly authorized to enter into such contract with the defendant.
The plaintiffs bring this action as trustees under the will of Mike Bouzon, who died April 26, 1919. He was then the owner of a lease, which included not only the first floor store-room and basement at No. 21 North High street in the city of Columbus, but, also, excepting therefrom certain rooms designated in the lease, the second, third, fourth and fifth floors over the rooms at Numbers 19, 21 and 23 North High street. The first floor store-room and basement had for some time been used for the operation of a moving picture theater conducted and managed by Bouzon. The lease was for a term of ten years, which expired August 31, 1921.
The claimed right of the plaintiffs to a lease for the further period of five years is based upon a provision in the original lease wherein it was agreed
The testator by Item 22 of his will authorized his executor to sell the Dreamland theater, and further provided in Item 23 of his will that “In the event there is any legal impediment in the lease or otherwise, which will prevent a sale of said moving picture theater under the foregoing item of this will, then it is my will, and I hereby direct that said moving picture business and said ‘Dreamland Theater’ shall be conducted during the life of the lease on
It should be observed here that the Dreamland theater occupied a comparatively small portion of the premises covered by the ten-year lease. That lease being a chattel, in the absence of any specific provision of the will to the contrary, passed to the executor. That was determined in this state in the case of Becker v. Walworth, 45 Ohio St., 169, where it was held that “A lease for years, being a chattel interest, passes, at tbe death of the lessee, to tbe personal representative, who becomes, by virtue of bis office, assignee of the term.” Indeed, the petition in this case avers that subsequent to the death of Bouzon, and after tbe appointment of the executor, tbe executor paid tbe monthly rentals under tbe lease and complied with tbe terms and conditions thereof. Presumably, in tbe discharge of the manifest duties of his office be also collected tbe rentals from tbe subtenants who occupied other portions of tbe leased premises. He was tbe assignee of tbe lease for tbe term.
In defining the duties and powers of the plaintiffs the testator makes no reference whatever to the lease in question, and we look in vain for any word in bis will authorizing them to execute a lease binding upon the testator’s estate. He merely delegates to them authority to conduct the moving picture business and tbe Dreamland theater “during the Ufe of the lease on said building.” Not only is there no further or additional authority conferred, but no
The rule is quite generally established that the representative of a decedent may not carry on the decedent’s business after his death unless such authority is expressly granted, and in the absence of clear and express authority an executor may not use the personal assets of his testator to carry on the former trade or business of such testator, and such gen
It is the rule, also, sustained by the great weight of authority, that the general assets of an estate will be subject to the payment of debts contracted by the legal representative while carrying on the business of the testator pursuant to a testamentary direction only where the will shows clearly that it was the intention of the testator that his general assets should be bound therefor.
The action of the probate court appointing the plaintiffs as trustees and directing them to conduct and operate the theater pursuant to the application of the executor cannot have any effect whatever in the determination of the rights and powers of the plaintiffs. Those rights and powers are derived entirely and solely from the provisions of Item 23 of Bouzon’s will, and are measured and limited by the terms of that instrument. (Atkinson v. Beckett, 34 W. Va., 584.) While equity implies such powers in favor of a trustee as are reasonably necessary to the discharge of the duties assigned him by the instrument creating the trust, it is equally well settled that when the powers and duties of a testamentary trustee are defined and limited by clear and express language of the will, and he is there authorized to do only a particular thing, he has no power as to any other matters connected with the estate of the testator. “In trusts of a more particular and active hind, the general power of the trustee is limited to the exact performance of the duty imposed
The ten-year lease contained the following provision : ‘ ‘ Said Lessees, without the written consent of the Lessor first endorsed hereon, shall never sublet, underlet or release any part of the first floor or basement of the premises herein included, or assign this lease.” During his life the lessee could not have assigned the lease as a whole, or sublet the portion occupied as a moving picture theater, without first having the written consent of the lessor; no more could he do so by will, and surely these trustees under the very limited power conferred by the lessee’s will could not acquire all the rights and benefits of an assignee of the lease in the absence of such consent of the lessor.
It is further urged that the defendant was estopped by reason of his acts and conduct to refuse to exe
For the reasons assigned the judgment of the court of appeals is reversed, and judgment is rendered for plaintiff in error.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.