in an executor. Davis v. Hoover et al. Williams Ex. (7th ed.), bot. p. 461, and notes; Farwell v. Jacobs, 4 Mass. 634; 2 R. S. 1876, 530, section 93; R. S. 1881, section 2361. The case before us falls within that general rule, and Free took all the power under the will which would have devolved upon an executor if one had been named. In the construction of a general and indefinite direction of a testator for the sale of his property, Williams on Executors, above cited, says, at bottom page 655: "It sometimes happens that a testator directs his estate to be disposed of for certain purposes, without declaring by whom the sale shall be made. In the absence of such a declaration, if the proceeds be distributable by the executor, he shall have the power by implication. Thus, a power in a will to sell or mortgage, without naming a donee, will, if a contrary intention do not appear, vest in the executor, if the fund is to be distributable by him, either for the payment of debts or legacies." See, also, note a, and the cases there cited. This rule of construction is both reasonable and practicable, and is well supported by authorities. The statute in force on the subject of the sale of devised real estate when Free sold that named in the will to Miller was as follows: "When real estate or any interest therein is devised by the will, or directed to be sold for the payment of debts or legacies, the executor shall proceed to dispose of the estate, and apply the same according to the provisions of the will." 2 R. S. 1876, 529, section 92; R. S. 1881, section 2359. So far as we are advised, it has never been, and, as we believe, it ought not to be, held that, in cases falling within the provisions of this section of the statute, it was necessary to obtain an order of court to authorize the sale of real estate specifically devised for the payment of debts or legacies; and it is now expressly provided by section 2360, R. S. 1881, that it is not necessary, in such cases, to obtain such an order of court. The duties imposed upon some person Davis v. Hoover et al. by the will under consideration were such as are ordinarily devolved upon an executor or administrator with the will annexed, and hence we conclude that Free, as such administrator with the will annexed, had the implied power to sell the real estate directed to be sold, and to invest and control the proceeds for the benefit of the widow; also, that he had power to sell and convey it without an order of court either authorizing or requiring him to do so. Munson v. Cole, 98 Ind. 502. It is sometimes necessary to the sale of devised lands that an order of sale shall first be procured, but that is in a class of cases different from the one at bar. Duncan v. Gainey, 108 Ind. 579. This court has held that, where a sheriff sells property on execution, subject to appraisement before sale, and his return is silent as to whether the property was appraised, the presumption will be indulged that the sheriff did his duty, and that an appraisement was made as required, in the absence of proof to the contrary. Evans v. Ashby, 22 Ind. 15; Talbott v. Hale, 72 Ind. 1; Woolen v. Rockafeller, 81 Ind. 208; Jones v. Kokomo, etc., Ass'n, 77 Ind. 340. We regard the rule thus applied to a sheriff's sale as having an analogous, and, therefore, a proper application to such a sale as that made by Free to Miller, which it is likewise the policy of the law to uphold by every reasonable presumption of regularity. It is enacted by the first section of the act of March 5th, 1883 (Acts of 1883, p. 109), "That whenever, heretofore or hereafter, any deed shall have been executed by any administrator, executor, guardian, sheriff, or commissioner of court, by virtue of any order, judgment, or decree of court, or by virtue of any will, or by virtue of any sale made upon any execution issued on any judgment, and the record of such order, decree of court, will, execution, or judgment shall have been destroyed by fire in the burning of any courthouse in this State, then such deed, or the record thereof, Davis v. Hoover et al. shall be prima facie evidence of all the facts recited in such deed, and of the regularity and sufficiency of all the proceedings, records, and papers in virtue of which the deed was executed." The deed from Free to Miller, in evidence in this case, purporting, as it does, to have been made by virtue of, and in accordance with, the last will and testament of the testator, Vanduyne, falls seemingly, and, as we think, fairly, within the spirit and purview of this statute, and hence carries with it the presumption, if it did not otherwise arise, that the real estate was first appraised as directed by the will. How far the provision of the will requiring an appraisement of the real estate ought to be construed as mandatory, and hence a condition precedent to its sale, presents a question which has not been discussed, and which, in consequence, we have not considered. Considering the first and last items of the will before us together, we construe them to mean that so long as the real estate remained unsold the widow was entitled to receive the rents and profits resulting from it, but that it was the duty of the person charged with the execution of the will to sell the real estate within a reasonable time at its full or appraised value, and that thereupon the widow was to take the annual and accruing interest on the purchase-money instead of the rents and profits. The widow appears to have acquiesced in this construction for a period of near, if not quite, fourteen years, and we see no ground upon which she can now be permitted to successfully insist upon a different construction. The designation of Free as "executor" in the deed to Miller was, under the circumstances attending it, only a mere clerical, and, therefore, immaterial, misdescription of the character in which he conveyed the real estate. Downie v. Buennagel, 94 Ind. 228. The judgment is affirmed, with costs. 112 430 116 392 116 411 Bartholomew v. Pierson. 118 269 119 290 121 281 121 306 123 333 No. 13,542. BARTHOLOMEW v. PIERSON. MORTGAGE.-Husband and Wife.-Tenants by Entireties. When Mortgage SAME.-Special Finding as to Suretyship.-Where there is a finding merely From the Hendricks Circuit Court. E. G. Hogate and R. B. Blake, for appellant. ZOLLARS, J.-Appellant, by this action, seeks to foreclose a mortgage and recover a personal judgment upon a promissory note. Upon a proper request, the court below made a special finding of the facts. The facts so found are substantially as follows: On the 15th day of February, 1883, appellee and her husband, since deceased, executed the note and mortgage in suit. The mortgage is upon land which appellee and her husband owned as tenants by entireties. At the time of the execution of the note and mortgage, and in consideration thereof, appellant signed and delivered to the husband a check on a bank for $600, setting out the check, the amount Bartholomew v. Pierson. of which was paid to the husband by the bank. Appellee "received no part of the money thus obtained. * * She signed the note and mortgage in order that her husband, William H. Pierson, might obtain said money, but not for the purpose of obtaining any money for herself." Upon the facts thus found and stated, the court concluded and adjudged as a matter of law that, as against appellee, the note and mortgage are void, and that appellant is not entitled to recover upon either; and, further, that appellee is entitled to have the same cancelled, as she asks in her cross-complaint. The first question for decision here is, are the conclusions of law correct upon the facts found? That the check was delivered to the husband and made payable to him is an evidentiary fact rather than the ultimate fact to be found. And while it may tend, in some degree, to show that the loan was made to the husband, it is by no means conclusive of that fact. So far as the ultimate rights of the parties are concerned, it is immaterial, except as a matter of evidence, to whom the check was made payable, or who received the money upon it from the bank. The statements in relation to the check and the payment of it to the husband are statements of evidence and have no proper place in the finding of facts. They should be regarded as surplusage, and disregarded in passing upon the finding of facts. Ward v. Berkshire Life Ins. Co., 108 Ind. 301 (307); Indianapolis, etc., R. W. Co. v. Bush, 101 Ind. 582; Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151. The mortgage executed by appellee and her husband upon the land which they owned as tenants by entireties was not necessarily void, either at common law or under our statutes. Dodge v. Kinzy, 101 Ind. 102 (106); Me Lead v. Etna Life Ins. Co., 107 Ind. 394 (397); Fawkner v. Scottish, etc., Co., 107 Ind. 555. Under our statute, section 5119, R. S. 1881, both the note and mortgage are void as to appellee, at her pleasure, if she executed them only as surety for her husband. See cases |
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