Kidwell v. Brummagim

By the Court, Sawyer, J.: Jacob C. Beideman, a resident of San Francisco, died on the 8th of July, 1865, seized of a large amount of real estate in the City and County of San Francisco. He left a will bearing date the 26th day of January, 1863, in which it is provided as follows : “First—The executor of this my last will and testament will, within one year after my decease, sell at public auction, in proper subdivisions, at said city and county, after giving two months notice of such sale, a.11 the real estate I shall own, be seized, possessed of or interested in at the time of my decease, etc.; * * and from the proceeds of such sale the said executor will pay the expenses of my last sickness, the expenses of my funeral and all my just debts. * Second—I give and bequeath and devise to Henry F. Williams, of the said City and County of San Francisco, twenty thousand dollars in money, proceeds of the sale above provided for, remaining after the said expenses and my just debts are paid; in trust, however, for the following purposes and none other or different—that is to say,” etc., specifying the purposes. He then gives twenty thousand dollars more, “ proceeds of the sale above provided for,” to said Williams, “in trust” for other uses specified ; then various other sums, in trust for sundry other purposes; then: “Ninth—And from the proceeds of the sale of my property, remaining after all the above gifts, devises and bequests are fully provided for, I make the following gifts, devises and bequests: that is to say”— specifying a large number of bequests, many of which are to various public and charitable institutions. After which, he disposes of the residue to other designated parties upon speci[439]fied trusts, and appoints Samuel H. Parker sole executor. The dispositions of the will are wholly different from those provided by the Statute of Descents and Distributions. On the 29th of July, 1865, letters testamentary issued to said Parker. On the 14th of March, 1866, after entering upon his duties as executor, and within a year after the death of the testator, said Parker died. On the 30th of April, 1866, letters of administration, with the will of said Beideman, deceased, annexed, were issued to Wm. R. Satterlee, and defendant Brummagim. On the 9th of December, 1866, said William R. Satterlee died, leaving defendant Brummagim sole surviving administrator with the will annexed. One year after the death of said Beideman expired on the 8th of July, 1866. The defendant Brummagim, as administrator with the will annexed of said Beideman, after the expiration of the year, was proceeding to sell the real estate of the testator in pursuance of the direction to the executor contained in the first clause of the said will. The plaintiff, a niece of the testator, and one of the devisees, and a cestui que trust mentioned in the will, applied for an injunction to restrain the sale, on the ground that the defendant had no power to sell, and that a sale would cloud the title to the real estate, diminish the value and involve her in litigation and loss. The District Court entered an order refusing to grant an injunction, and plaintiff appeals from the order.