Hovey v. Walbank

McFarland, J. Breton died on the 4th of August, 1890, leaving a will, of which the following are the material parts necessary to be here considered:

“First. I direct that all my just debts, the expenses of my last sickness, and my funeral expenses be paid from the first money that shall come to the hands of my executrix hereinafter named.

“ Secondly. I will, bequeath, and devise to my beloved wife, Bertha Breton, all of the remainder of my property, real, personal, and mixed, and wherever the same may be situated, to have, use, and expend as she may see fit during her lifetime, with full power to sell, transfer, or dispose of the whole or any portion thereof as she may deem proper, hereby granting, giving, and devising to her full power to convey a fee-simple title to any of the real estate which I may own at the time of my death, and to convey all the right, title, and interest which I may have at the time of my death of, in, and to all the property which may be hereby willed, bequeathed, and devised to her.

“After the death of my said wife, I direct that from any money remaining to my estate the following named legacies be paid.” Then follow several legacies to different persons; and by the will his said wife, Bertha Breton, was made executrix without bonds.

The widow, the said Bertha Breton, qualified as executrix, and such proceedings in the administration of the estate were duly had that on October 31, 1891, a final decree of distribution of the estate of Charles Breton, deceased, was regularly entered in the superior court in which said administration was pending, distributing said estate in the words of said will; and on November 7, 1891, a further decree was entered dis[197]charging the said Bertha Breton from all further liability as executrix, and adjudging that the estate was “ fully distributed, and the trust settled and closed.”

The said Bertha Breton took possession of all the property under said decree of distribution; and after-wards, on February 21, 1892, she made, executed, acknowledged, and delivered to the defendants, Edward M. Walbank and William Bisbee, an instrument in writing by which she conveyed and transferred to said defendants all the property mentioned in said decree of distribution, and in said will remaining undisposed of by her at that time; and the said defendants thereupon immediately took possession of all of said property. This instrument provided that the defendants should execute certain trusts therein expressly declared. After-wards the said Bertha Breton died, and the plaintiff herein, who was public administrator, procured himself to be appointed administrator with the will annexed of the estate of said Charles Breton, deceased. As such administrator he commenced this action against said defendants Walbank and Bisbee to recover possession of all the property in their hands which had belonged to said Charles Breton, deceased, at the date of his death. The defendants answered, claiming ownership of said property under said conveyance from said Bertha Breton. At the trial—the evidence and admissions of the parties having shown substantially the above facts—the court granted a nonsuit, and entered judgment for the defendants. From the judgment plaintiff appeals.