Hall v. . Wardwell

Bae-Nhill, J. While the indefiniteness of the trust provisions in the White will are mooted to some extent, the validity of this trust is not at issue. In any event the will vested title in the widow for life with the remainder in fee in the trustees. G. S. 36-21. The one decisive question is this: Did the will vest in Mrs. White, or in the trustees, or in both, the power to sell and convey the land in fee? The plaintiffs tender a deed which conveys the title they acquired through the deed from Mrs. White and also a deed executed by them as trustees. Hence, if either they or Mrs. White are, under the terms of the White will, vested with power to convey the locus, the title tendered is unassailable and defendants must comply with their contract. The court below concluded that the tendered deeds conveyed “a marketable and indefeasible title in fee.” In this conclusion we concur. In the absence of authority conferred by the will, a devisee for life or a trustee under a testamentary trust has no authority to convey the fee in the land devised. But the power to convey need not be expressly conferred. It may be implied from the context of the will. 54 A. J., *564 849. It is purely a question of testamentary intent. Tippett v. Tippett, 7 A. (2d), 612; 3 Bogert, Trusts and Trustees, pt. 2, 558. The implication may result from language necessarily requiring tlie exercise of the power, from the statement of purposes, or the conferring of other powers or duties to which the power of sale is essential. 54 A. J., 349. It will be implied where the power to invest and to consume the principal, consisting of real estate, for specific purposes, or to invest and manage real estate, Robinson v. Robinson, 105 Me., 68, 32 L. R. A., ns, 675, or “to invest and keep invested” is conferred, with a devise over of the unconsumed principal. Foil v. Newsome, 138 N. C., 115; Powell v. Woodcock, 149 N. C., 235; Dillon v. Cotton Mills, 187 N. C., 812, 123 S. E., 89; Bank v. Edwards, 193 N. C., 118, 136 S. E., 342; Anno. 134 A. L. R., 380, 400. Here the life tenant was authorized to invest and keep invested the principal estate consisting in part of real property “without liability for any losses incurred,” and to use any portion thereof she should desire for the maintenance or care of any charitable or philanthropic purpose or individual or cause she might select. This could be accomplished only by a conversion of the land into liquid assets. The conversion into liquid assets required a sale. Hence the power to sell must he inferred. The widow, in the exercise of this power, conveyed the premises to the plaintiffs. They thereby became the owners of the property in fee and the deed tendered by them conveys a like estate $o defendants. Furthermore, the trustees who were seized of the premises in fee, subject to the life estate of the widow and her power of disposition, were likewise directed to “keep such residue . . . invested . . . and use the proceeds . . .” for designated purposes. The right to invest and use the proceeds necessarily implies the power to convert into proceeds by sale. It follows that any asserted defect in the title of plaintiffs as individuals is cured, if cure is needed, by the deed they, as trustees, have tendered to the defendants. Hence the judgment below must bo Affirmed.