The opinion
On Motion for Rehearing.
Appellants have filed a motion for rehearing, which is supported by a most thorough *610 and challenging argument against the construction and effect given the will by this court.
The obscurity of language in which portions of the will are clothed is well calculated to leave in any mind, which has labored to ascertain and interpret the intention attempted to be declared, some doubt as to the precise meaning it was designed and framed to convey. In such situation the able argument which accompanies the motion for rehearing demonstrates with force that different conclusions as to the effect of the will as a whole may be derived from its contents, and logically defended as sound and correct. However, after a most careful consideration of .the motion for rehearing, in the light of the accompanying persuasive argument, we still do not believe we ought to recede from the position assumed and expressed in our original opinion. We think our opinion most probably gives the effect the testatrix intended should flow from her will.
In the first place, appellants insist that we have misapprehended the purpose of clause 7 of the will, because they say that this clause explicitly confers the power of sale upon the executor to sell land only for the payment of flebts and legacies. The logic of this position is rested upon the proposi- . tion that, while an independent executor possesses the power to do these things incident to his office, yet the presumption with reference to title conveyed under a will containing an express provision of sale for such purposes is in favor of the purchaser; whereas, in the absence of an express power of sale, the burden is upon the purchaser to show the existence of conditions to justify the sale when it is questioned in a judicial proceeding.
This argument takes no account of the vital condition that clause 7 is to be operative only in the event'Wells Springfield should survive Mrs. Springfield. If she survived him, then clause 7 by its own explicit terms was to be given no effect. Accordingly, if the contention made by appellant should be sustained we would have Mrs, Springfield saying by her will that she desired an express power of sale to be conferred upon the executor for the purpose of paying legacies and debts in the event her husband survived her, but that in the other contingency such power was not to be expressly granted. . Certainly she could have validly made such provision. She could have said the bank should possess the power of sale for the purpose of paying debts and legacies, in the event her husband should survive her, without expressly granting such power in the event he should predecease her, and, if she had so declared, then there would be no alternative with reference to recognizing such provision. But the language used by her, we think, does not have such effect, and to give it a construction resulting ip such effect, it seems to us, would be to subvert the terms of the will for the purpose of reading into the instrument an intention which is both improbable and unreasonable.
Of course, at the time she made the will it was just as uncertain that Wells Springfield would survive her as that she would survive him. Yet, while this element of uncertainty existed, and was to be considered with reference to the one or the other of them surviving, she made no provision for such presumption in favor of sales in one of the events, while she did in the other, under appellants’ theory, notwithstanding the fact that the one as likely as the other should happen. If she desired by her will to insert the provision clothing the bank with the power of sale in the event Wells Springfield should survive her, in order to make sure of better sales than could be effected without such express provisions, because of the presumption that would exist in the purchaser’s favor in case of a contest, then is it reasonable that she would have omitted to safeguard such sale with the same provision in the event she should survive Mr. Springfield? The very fact that clause 7 clothes the bank with the power of sale only in the event of Mr. Springfield surviving the testatrix, and the will containing no such provision except in the event Mir. Springfield should survive her, seems to us to render entirely improbable the intention with reference to this feature so zealously contended for by appellants. For what reason could the testatrix desire that her executor should have express powers of sale conferred upon him only upon such contingency as that Mr. Springfield should survive her, and leave out of the will such express power of sale for the payment of debts and legacies in the other contingency — that is, of her surviving Mr. Springfield and her property passing from her directly to the collateral kin?
It seems to us that to say she intended, in the absence of a reasonably clear expression of such intention, either directly or indirectly made, to do this anomalous thing, would be to give to the will a most unnatural effect. In this connection it must steadily be borne in mind that none of the provisions of clause 7 of the will could obtain except upon the condition that Mr. Springfield should survive the testatrix. It will be observed that in no portion of the will is any express power of sale conferred for the purpose of paying debts and legacies, unless such purpose is to be ascribed to clause 7, which, as repeatedly stated, could take effect only upon the condition that Wells Springfield should. survive the testatrix. The testatrix could not reasonably have intended to authorize the sale of property, by. express provision upon the grounds assigned in the argument made for appellants without eliminating such condition and making the express authority absolute. She could not have reasonably intended that upon such condition an express power of sale should exist in the executor for the *611 purposes assigned, by appellants in support of the motion for rehearing, and, at the same time, left the executor to the exercise of its implied powers as such, in the absence of the contingency arising upon which the .vitality of clause 7 is based. Subdivision S under this clause of the will does provide for a trusteeship, under which the bank is to have the management and control of the property bequeathed to Grafton Wortham Hunt and Zimri Hunt, Jr. This provision, however, as is apparent at a glance, has no relation whatever to the executor’s disposal of property for the purpose of paying debts and legacies.
The second ground of criticism in the motion for rehearing, directed against our opintion, is that we were in error in holding that payment of the $25,000 gift to Mr. Springfield out of Mrs. Spring-field's separate estate' is not dependent upon any special grant of power or authority for its execution. However, it is conceded, as we understand the argument, that the power inheres in the independent executor, without an express provision to make such sale; but appellants contend that, in the absence of an express power of sale for the purpose of paying the legacy, there might be such uncertainty with reference to the validity of the sale as to.affect the price. This argument is applied throughout the criticism of our interpretation of clause 7. It is an argument which, while it demonstrates the expediency of giving an executor express power and direction to sell land to pay debts and legacies, fails to disclose to us that clause 7 expresses, only an intention to direct the sale of land for such purposes and no other.
We do not agree with appellants’ construction of paragraph 5 of the will in relation to paragraph 7. Paragraph 5, we think, must be held to mean that, in the event Mrs. Springfield survives her husband then all of her property, both real and personal, at her death is to pass to her collateral kin according to the specific devises and bequests contained in this paragraph. It also means that, if Mrs. Springfield should predecease her husband, then, in such event the same property is to pass to her collateral kin in remainder upon the termination of the life estate given Mr. Springfield. Unless paragraph 5 is given the effect last stated, then the will nowhere contains any bequest of property in remainder at the end of the life estate. So, M!r. Springfield having survived the testatrix, clause 5 does expressly state that the remaindermen shall receive both real and personal property, and, as stated in our original opinion, since all the personal property passed absolutely to Springfield at Mrs. Springfield’s death, no personal property could come into existence, to be received by the remaindermen at the termination of the life estate, except through sale by the bank of at least a portion of the real estate.
We think appellants’ exhaustive argument, intended to establish the proposition that paragraph 7 was necessary, and was intended by Mrs. Springfield in order to make provision for the payment of the $5,000 in cash given to Zimri Hunt out of the undivided one-third of the real estate, and also in order to enable the executor to divide the unequal items of the real estate among the collateral kin, ignores the proposition that paragraph 7, with the express powers therein conferred, was to have effect only in the event Wells Springfield should survive Mrs. Springfield. Accordingly, we again arrive at the same position with reference to the application of paragraph 7 to paragraph 5 that we ultimately come to in consideration of the first proposition appellants seek to establish upon motion for rehearing with reference to the effect of paragraph 7 in its relation to legacies and the payment of debts. In other words, appellants would have Mrs. Springfield, under paragraph 5, making express provision and granting express authority to the executor to make sales for the purpose of carrying out the $5,000 gift to Zimri Hunt, and for the purpose of making partition only in the event her collateral kin inherit as re-maindermen upon the termination of - the life estate in Wells Springfield; whereas in the event they should inherit the estate, as provided under paragraph 5, absolutely at the death of Mrs. Springfield without the intervention of a life estate, then she leaves them without the benefits appellants contend are conferred by the express provisions of paragraph 7, authorizing sales for the carrying out of the $5,000 gift to Zimri Hunt and making partition. The question naturally arises; Why should Mrs. Springfield be concerned in eliminating uncertainties with reference to the power of sale for such purposes in the event her husband should survive her and have no such concern with reference to these matters in the event he should predecease her?
This same course of reasoning applies to the further proposition, contained in the argument upon the motion for rehearing, to the effect that the express powers of sale contained in paragraph 7 of the will have an appropriate bearing upon the administration of Mrs. Springfield’s interest in the community property. If the express provisions of paragraph 7 were regarded as necessary to any disposition of the community property in the event Mr. Springfield survived her, it seems to us that such provision would have been equally important in Mrs. Springfield’s estimation in connection with the contingency of her surviving Springfield, so that she would have had the same intention, and would have expressed the same intention, with reference to such express powers of disposition, etc., upon the contingency that she should survive her husband.
Appellants point out in their motion for a rehearing that conditions have now changed, *612 and that the property under these new conditions will produce revenue to be enjoyed by Wells Springfield without the necessity of a sale. Such conditions were not disclosed in the record upon which our opinion was based and cannot be considered. We have given the most careful consideration to the earnest and impressive argument urged in support of the motion. After consideration of the motion and argument, we are still of the opin-on that paragraph 7 of the will created a trust and clothed the bank with the power of sale. Such being the view entertained by us, we think the meaning already given the will by us most probably expresses Mrs. Springfield’s intention.
Appellants have insisted from the beginning that the form of the decree entered by the trial court is improper, and urge this matter upon our attention now in the motion for rehearing, as they did when the cause was presented in the first instance. We took no notice of this contention in our former opinion, although we did consider the matter. We have given it consideration again in the light of the contention made in the motion for rehearing. We do not believe the decree is subject to the criticism urged in this respect by appellant, and we decline to reform it as suggested by appellants.
The motion for rehearing is overruled.