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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 349 The question to be solved here is not whether the power of sale survives to the surviving executor. The will declares expressly that it shall so survive. But that case has not occurred. The executors were all living when the deed in question was executed under the power. Two of the three had, however, neglected to act under the will. Only one had taken upon himself the execution of the will. He executed the deed in question alone and without the concurrence of the others. This was not a valid execution of the power at common law, and whether it was good under the statute of this state, (2 R.S. 109, § 55,) is the question presented for decision.
The statute is as follows: "Sec. 55. Where any real estate or any interest therein is given or devised by any will legally executed, to the executors therein named, or any of them, to be sold by them or any of them, or where such estate is ordered by any last will to be sold by the executors, and any executor shall neglect or refuse to take upon him the execution of such will, then all sales made by the executor or executors, who shall take upon them the execution of such will, shall be equally valid, as if the other executors had joined in such sale." This statute is not a copy of 21 H. 8, ch. 4, but was intended undoubtedly to embrace all the cases adjudged to fall within the scope of the English act, and perhaps others.
But the plaintiff, who contests the validity of the deed, insists that the statute applies only to those cases in which the land is ordered to be sold by a positive and mandatory direction of the testator; and not to the case of a mere power of sale, or where there is a discretion given to the executors to determine whether the land shall be sold or not. This distinction appears to be somewhat nice and refined; one that might not occur to all readers of the statute. It seems to have slept unnoticed during the progress and termination of several contested cases in this state and elsewhere, in which the distinction, if sound, would have been fatal to conveyances that were adjudged, in those cases, to be valid.
In Roseboom v. Mosher, (2 Denio, 61,) the testator gave to his executors discretionary power to sell his lands, if in their *Page 350 opinion, it should become necessary for the support and maintenance of his wife and children. One of the executors neglected to qualify, and the other who acted sold the land and executed the deed. It was regarded as a valid execution of the power under the statute. The case turned chiefly on the question whether proof of renunciation by one was necessary to enable the other to execute the power; and it was held that mere neglect to act was enough without a renunciation. The objection in that case would, if valid, have been fatal to the deed, but it was not raised by the counsel, nor suggested by the court.
Sharp v. Pratt, (15 Wend. 610,) was a case of the same kind. Nicholas Kiersted by his will appointed four executors, andauthorized them to sell his real estate which he had devised to his children. Two of the executors acted under the will and conveyed the land without the concurrence of the others. The contested question in the case was, whether it was necessary to show, in support of the deed executed by the acting executors, that the others had renounced; and it was held not to be necessary. The objection now made was not raised; but the language of the court shows that the statute authorizing acting executors to execute the conveyance, was supposed to apply as well to a mere discretionary power, as to a mandatory order of sale. The court say, "the statute intended to depart from the rule of the common law, by declaring that when power is given toseveral executors to sell the land, it may be executed by such as take charge of the administration, if the others refuse or neglect to take on themselves the execution of the will;" and after some further remarks the court proceed to say, "The deed, therefore, was equally efficacious to transfer the title of the testator as if it had been executed by all the executors named in the will. In this respect the statute makes no distinctionbetween a devise to sell and a bare authority."
In Bunner and Manning, ex'rs, v. Storm, (1 Sandf. 357,) Thomas Storm empowered his five executors to sell his real estate. Two of them acted, two renounced, and one was an *Page 351 infant. The two who acted sold the land under the power, and executed the deed without the concurrence of the others. In relation to the nature of the power, the vice chancellor said, "I am satisfied that the testator intended to make the executors the judges of the necessity for a sale." The question was whether the deed thus made by the acting executors was a valid execution of the power, and the vice chancellor adjudged that it was.
Here then are three cases in the courts of this state, in which discretionary powers of sale have been held to be within the statute, and well executed by acting executors without the concurrence of the others. If these cases are not regarded as adjudications settling the construction of the statute in this state, they furnish at least very strong proof of the general understanding of the profession and of the courts, that the statute embraces the case of a mere discretionary power as well as that of a peremptory direction.
But we are referred to three cases in the court of appeals of Kentucky, in which it is declared that where a power of sale is conferred upon executors, leaving it to their discretion whether to sell or not, and part of the executors renounce, the acting executors cannot execute the power.
By a statute of Kentucky, passed in 1799, it is enacted "that the sale and conveyance of lands devised to be sold, shall be made by the executors or such of them as shall undertake the execution of the will," c. In one of the cases above mentioned, (Wooldridge v. Watkins, 3 Bibb, 349,) it was held that this statute did not apply to a case in which the testator had "left it in the power of his executors to sell or exchange any part of his estate, real or personal, as they might judge necessary for the advantage of his estate." The opinion appears to have been founded on the reading of the act, and not upon any previous adjudication. No authority is cited. The case was decided in 1814.
In 1830, in the case of Coleman v. McKinney, (3 J.J.Marshall, 246,) it was held that the statute did apply to a case in which the testator had directed his executors to sell his lands *Page 352 for the payment of his debts, if his personal estate should be insufficient for that purpose, because the contingency on which the sale was to be made did not depend on the judgment of the executors. In Clay v. Hart, (7 Dana, 1,) decided in 1838, that court affirmed the law as laid down in Wooldridge v.Watkins, and added that the like doctrine had been long and incontrovertibly settled in England, in reference to the statute of 21 H. 8, ch. 4. English books were referred to in support of that construcion. But with the greatest respect for that learned court, I am compelled to say, that I find nothing in the books referred to to uphold the doctrine. On the contrary, Mr. Sugden in his treatise on powers, at the place referred to, (p. 75,) says that formerly where a power was given to executors to sell, and one of them refused the trust, it was clear that the others could not sell, but that the 21 H. 8, ch. 4, had altered the law in that respect. The doctrine derives no support from the case cited from Moore's reports, p. 61. That was not the case of a power of sale executed by an acting executor without the concurrence of a co-executor who had renounced. Nor was it the case of a power in which the executors had a discretion to sell or not. But it was a case in which the land was devised to be sold by the testator's executors, or by the executors of his executors. One of the testator's executors died intestate, and the survivor appointed executors and died; and the question was whether the executors of the surviving executor could make the sale. It was adjudged that they could not, because the power was committed not to them alone, but to them jointly with the executors of the other executor. This case throws no light upon the construction of the statute 21 H. 8. It shows simply that a joint power cannot, at common law, be executed by a part of those to whom it was entrusted, and without the concurrence of the rest. It was not a case within the 21 H. 8, because both the original executors were dead. Nor are the cases of Cole v.Wade, (16 Ves. 27,) and Walter v. Maunde, (19 id. 424,) any more satisfactory on this point. There the trust was to divide the estate of Sir Charles Boothe, among his nearest and most deserving relations — the distribution *Page 353 to be made entirely in the discretion of the trustees. The trust was to be executed by Ruddle and Wade, the executors, andthe heirs, executors and administrators of the survivor of them. It was declared that the devisees of the surviving trustee (who were not his heirs,) could not execute the trust, they not being the persons designated therefor by Sir Charles Boothe, the original testator. The case has no relation whatever to the statute 21 H. 8.
After bestowing some pains upon the search, I have not been able to find any English adjudication or dictum that the operation of the statute 21 H. 8, ch. 4, is limited to the case of a peremptory order to sell. Lord Coke speaks of it as embracing the case of "a power to sell." In his commentary upon Littleton, 113, a, he says, "In Littleton's case admit that one executor had refused to sell, then as the law stood when Littleton wrote, it was clear that the others could not sell. But now by the statute 21 H. 8, it is provided that when lands are willed to be sold by executors, though part of them refuse, yet the residue may sell: And albeit the letter of the law extendeth only where executors have a power to sell, yet being a beneficial law it is by construction extended where lands are devised to executors to be sold." Mr. Preston in his essay on abstracts of title (vol. 2, p. 253,) repeats the language of Lord Coke, saying, "This statute has been construed to extend as well to lands which are actually devised to be sold to two or more executors, as to lands over which there is merely anauthority;" and in no English book can I find the trace of such a distinction as that upon which the decision was founded in the case of Clay v. Hart.
In Jackson v. Given, (16 John. 170,) Mr. Justice Platt seemed to have in his mind the distinction contended for on the part of the plaintiff. But that case presented a case of survivorship and not a question under the statute. It was so treated by the counsel. The testator made four executors, and directed them or any two of them, to sell his estate upon his wife's death or re-marriage. Two of them died without qualifying. Two qualified as executors and afterwards one of them died, and *Page 354 the survivor sold and conveyed the estate. The two who qualified were authorized to sell by the express terms of the power. If the power survived, there was no need of the aid of the statute. If it did not, the statute could not aid the sale, because it was not made "by the executors who took upon them the execution of the will," one of them being dead. Under such circumstances the observation made by the learned justice at the commencement of his opinion, ought not to be regarded as authority, especially when taken in connexion with the subsequent cases heretofore mentioned.
The distinction upon which the court acted in the cases ofWooldridge v. Watkins, and Clay v. Hart, in the state of Kentucky, does not seem to have been recognized in any other state.
The Pennsylvania case of Zebach's lessee v. Smith, (3Binney, 69,) is against the Kentucky decisions. Bartholomew Zebach made his will, appointing three executors, and empowered them as follows: "to sell my land in Shamokin, on Penn's creek, in the old purchase, and to give good right. When my debts are paid, if any thing should remain, my wife shall buy two cows,"c. Two of the executors renounced and the other conveyed the land. There was no imperative direction to sell. The counsel for the plaintiff supposed that case to differ from the one in hand in this particular, that in the case of Zebach's will there was a trust which the creditors could have enforced in equity; but that in the will in question there was not such a trust. But it seems to me there was such a trust in both cases, and more plainly so in the case of Morris' will than that of Zebach, because in Morris' will the power is given expressly for the payment of debts, and in Zebach's it is only so by inference. The creditors have an interest in the execution of the power; and in case of a deficiency of personal estate, it ceases to be a matter of discretion in the executors whether to sell or not; it becomes their duty to sell. It is true the creditors may have another remedy, and perhaps a better one than a bill in equity against the executor to enforce the execution of the power, to wit, by application under the statute for an order to *Page 355 sell. But that does not change the character of the power, nor exonerate the executor from his duty to the creditors.
In Chanet v. Villeponteaux, (3 M'Cord's South Car. Rep.) the testator devised his lands to be sold at the discretion ofhis executors, of whom there were two. One went to France without having qualified, and the acting executor made the sale and conveyance. It was adjudged to be a case within the 21 H. 8, which had been re-enacted in that state.
In Wood v. Sparks, (1 Dev. Bat. N. Car. Rep.) the testator, by his will, made three executors, only one of whom qualified. That one, without the others, sold and conveyed the land under a power expressed in these words, "If my executorsshould think it best, I wish them to sell my real estate in the town of Plymouth, to the best advantage for the benefit of my children." The conveyance was adjudged to be a valid execution of the power by virtue of the statute 21 H. 8, ch. 4. It is true that no point appears to have been made in this case upon the discretionary character of the power. That question was not raised, although the case occurred more than twenty years after the decision of the case of Wooldridge v. Watkins.
But the question has been raised, argued and decided in the court of appeals of Virginia, and the decision was adverse to the rule adopted in Kentucky. It is worthy of observation that the statutes of Virginia and Kentucky, on this subject, are precisely alike, excepting that the statute of Virginia authorizes the administrator, with the will annexed, to execute the power of sale when all the executors refuse to act, in the same cases in which the acting executor can execute it when part of the executors refuse. The case alluded to was that of Brown v.Armistead, reported in 6 Rand. 593. The power of sale in the testator's will was in these words: "My will and desire is that my executors hereinafter appointed, sell, at public sale, all my land, provided the said land will sell for as much, in their judgment, as will be equal to its value; and the money arising from such sale to be placed in the hands of my friend StarkArmistead, one of my executors hereafter appointed, whom I vest with power to apply the said money to any use or uses he *Page 356 in his discretion may deem best for the benefit of my wife and all my children." The testator appointed three executors, all of whom refused to act. The sale was made and conveyance executed by the administrator with the will annexed. Judge Carr, in delivering the opinion of the court, says, "This statute," (speaking of that part of it of which the Kentucky statute is a copy,) "was taken from the 21 H. 8, ch. 4. It was admitted in the argument that if the testator had directed a positive and unconditional sale of the land by his executors, the case would have come directly within the law. But they are directed to sell provided the land will sell for as much, in their judgment, as will be equal to its value; and this, it is insisted, renders it a special confidence reposed in the individuals appointed executors, which is personal to them, and can only be exercised by them, and not even by a part of them, but by the whole only. This point was argued with great strength, but the researches of the counsel had enabled him to produce no cases in support of it, nor have I found any." The power was adjudged to be well executed. The opinion of the court was unanimous, excepting that one of the five judges was absent.
The argument on the part of the plaintiff is founded on the assumption that the statute, in speaking of lands "ordered to be sold," speaks only of those which the executors are peremptorily commanded to sell. But that would be a strict and narrow construction of a remedial and beneficial statute, the object of which was to prevent the failure of the power, and to carry out the intention of the testator as far as possible by the agents of his own selection. Although an authority to an executor to sell is not a command that he shall sell, it is substantially an order that he may sell.
The statute was designed as a remedy for the oversight of a testator in not providing for the contingency that some of his executors might refuse to serve; and it was framed upon the presumption and belief that if that contingency had been foreseen, the testator would have preferred that one of his executors should execute the power alone, rather than it should fail. This presumption applies with as much force to the case of a *Page 357 discretionary power as to one of a mandatory character. Very many testators are not aware of the common law rule, that in the execution of a joint power it is indispensable that all must unite. And in appointing the agents to execute a power involving the exercise of discretion, it is natural to suppose that each one would be selected with reference to his fitness and capacity for the trust. This inference is natural and fair in all cases where the testator has not thought proper to say expressly that a certain number must unite in the sale. Gaston, J. in Wood v.Sparks, (1 Dev. Bat. 392,) says, "the great purpose of the statute, (21 H. 8, ch. 4,) is to correct mischiefs resulting from a rigid construction of these testamentary authorities, and it is the rule of law to so expound the act as to suppress these mischiefs and apply its remedies." In the present case the power of sale was expressly given to the surviving executor: and the testator thereby manifested his intention that in a certain event the power might be executed by one only of the three donees. It is true the event contemplated has not occurred; that is to say, Willcocks is not the surviving executor, and therefore at common law the power could not be executed by him alone; but if the testator in this case had not deemed each separate executor capable of executing the power alone, he would not have authorized its execution by the survivor; and in Zebach'slessee v. Smith, Yeates, J. says that by the statute 21 H. 8, an acting executor upon the renunciation of the others is put upon the footing of a surviving executor. The statute in fact goes further. It enables the acting executor to execute the power in those cases in which the survivor would not have that authority by the common law.
I am satisfied both on principle and on authority that the statute should be held to extend to all powers of sale conferred on executors, whether they involve the exercise of discretion, on are peremptory in their character. Wills may thus be carried into effect according to their true intention, when otherwise they would be defeated by circumstances unforeseen by the testator. The judgment of the supreme court and of the New-York common pleas should be reversed, and a venire de novo awarded. *Page 358
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