Bennallack v. Richards

HAYNES, C. Appeal by Samuel Granger from an order appointing a receiver. Mary A. Bennallack, in March, 1895, commenced an action in the superior court of Nevada county against William G. Richards, Prancis S. Richards and James Bennallack, as executors of the last will of Philip Richards, deceased, and William G. Richards, Francis S. Richards, and William S. Richards, personally, to quiet her title to lot 28 in block 30, in Nevada City.

A sufficient statement of facts may be made without attempting a synopsis of each different pleading. Philip Richards, in May, 1887, died testate, seised of said lot. His will was duly probated, and William G. Richards, Prancis S. Richards, and James Bennallack, who were nominated therein as executors, were appointed and qualified as such. Certain legacies or “money bequests” were made in the will, and the testator’s brothers, Francis S. and William S. Richards, were named as residuary legatees.

The will directed that no part of the estate be sold until two years after the testator’s death; that in the meantime the executors should collect the rents, and after paying taxes, et cetera, the remainder should be applied to the payment of said "money bequests.” The will further provided: “After the expiration of two years from my decease, my said executors are hereby empowered to sell at public or private sale any portion of my estate, real or personal, to such persons, on such terms, and for such sums as they may deem advisable; and all this to do and perform without any order of court whatever, and also to make, execute, and deliver any and all deeds, bills of sale, or other conveyances necessary to dispose of said estate and convert the same into money, without any order of the court, or being' required to account to any court.”

[429]The lot in question was duly appraised at three thousand dollars in April, 1891, and on May 11, 1891, was sold by the executors under the power given them by the will, to Samuel Granger for the sum of three thousand three hundred and sixty-five dollars; but the sale was not then reported to or confirmed by the court, but the executors, supposing that the will gave them power to convey without a confirmation of the sale, at once executed to the purchaser a deed for said lot, received the purchase money and distributed it to the legatees under an order of the court, and the purchaser was put in possession.

In a cross-complaint filed by Francis S. Richards, one of the executors, it is alleged that said sale was never confirmed by the court, nor any order made for a conveyance; that Granger entered into possession of the lot on May 11, 1891, and remained in possession until February 9, 1893, and during that time received rents to the amount of five hundred dollars over and above all expenditures thereon; that on May 16, 1891, “Granger assigned to James Bennallack, in trust for the benefit of Mary A. Bennallack, his interest in said lot for the sum of three thousand five hundred dollars,” of which he then received three thousand dollars, and the remainder he received from rents collected between that date and February 9, 1893, when he conveyed the lot to said Mary A. Bennallack, who then went into and remained in possession of the property and appropriated the rents until May 8, 1897, when she sold and conveyed the lot to Granger for the sum of three thousand five hundred dollars,” and that Granger has ever since been in possession and received a rental of one hundred and six dollars per month; that in 1894 Francis S. Richards conveyed to James Bennallack all his interest as residuary legatee in said lot, and Bennallack conveyed said interest to Granger on May 8, 1897.