Bailey, Junior

Dtjrbbe, C. J. We do not find it necessary to decide whether our statute extends to devises and conveyances in trust or not, for, assuming that it does, and that the devise to Arnold and Allen must be construed as a devise to them as tenants in common, and that consequently Arnold acquired title to only an undivided half of the real estate devised, we are nevertheless of the opinion that Arnold, on disclaimer by Allen, had power to sell the entire estate, and that his deed to Bailey therefore vested in Bailey the entire estate in the land described in it. The reason which has led us to this conclusion is that the power to sell which is given by the will to Arnold and Allen was not a mere power to be exercised or not at their pleasure or discretion, but a positive direction, a duty imposed on them to convert the land into money for use and investment in a manner which is plainly declared for the benefit of the cestuis que trustent, a duty so distinct, so obligatory, so imperative, that if it had been neglected the cestuis que trustent could have resorted to this court in equity to enforce its execution. In other words, the power is of that class of powers which are denominated powers coupled with a trust; and we think that where such a power is given to two or more to be executed by them jointly, if one renounces, the other or others will take the power as if it were originally given only to them, to the end that the trust may not fail of execution, or suffer detriment or delay. Houell v. Barnes, Cro. Car. 382; Lessee of Zebach v. Smith, 3 Binn. 69; Osgood v. Franklin, 2 Johns. Ch. 1; Franklin v. Osgood, 14 Johns. Rep. 527; Jackson dem. Hunt v. Ferris, 15 Johns. Rep. 346; Peter v. Beverley, 10 Pet. 532; Putnam Free School v. Fisher, 30 Me. 523. A review of some of these cases will set the doctrine in a clearer light. Houell v. Barnes was a question out of chancery propounded to the common law judges. “ The case was,” says the report, “ one *69 Francis Barnes, seized of land in fee, devise th it to liis wife for her life, and afterwards orders the same to be sold by his executors hereunder named, and the money thereof coming to be divided amongst his nephews; and of the said will made William Clerk and Robert Chefly his executors. William Clerk dies ; the wife is yet alive. Two questions were áiade: First. Whether the said William Clerk and Robert Chefly had an interest by this-devise or but an authority: Secondly. Whether the surviving executor hath any authority to sell.” The judges all resolved “ that they have not any interest, but only an authority, and that the surviving executor, notwithstanding the death of his companion, may sell.” And so the judges certified their opinions. The questions were answered without reasons, but if the judges had given their reasons they probably would have said that the power survived, not because it was coupled with a trust, but because it was official, not merely personal, and therefore followed the office to the surviving executor, being essential to the performance of a duty imposed upon the executors as such for the purpose of carrying the will into effect. The meaning, however, would have been essentially the same as if they had used the language of the chancery courts, and said that the power survived because it was a power coupled with a trust. The case is quoted in Osgood v. Franklin, 2 Johns. Ch. 1, in support of the doctrine that a power given to two or more goes to the survivor when coupled-with a trust. See, also, Lessee of Zebach v. Smith, which is very similar to Houell v. Barnes. In Osgood v. Franklin, 2 Johns. Ch. 1, the power was given by a will which appointed the wife of the testator and his three brothers executors. The power was given in these words, to wit : “I give to my executors that may act, and to the major part of them, their heirs or executors, full power to sell any or all my real estate not already devised.” The will gave the residuary estate to eight persons, four of whom were the four persons appointed executors, one eighth to each. This devise was coupled with the following direction, to wit: “ I order that the money or effects be distributed and divided from time to time, as it can be raised from my debts and estate by my executors, hereafter named.” One of the,brothers declined to act; the other two accepted the appoint *70 ment and acted until they died. After their death, the widow qualified. The principal question in the case was whether she had power under the will to sell the real estate. Chancellor Kent decided that the executors were charged with a trust, relative to the estate, depending on the power to sell, and that the power, therefore, survived. “ The intention of the testator,” he remarked, “ is much regarded in the construction of these powers, and they are construed with greater or less latitude in reference to that intent.” The case was carried to the Court of Errors and there affirmed, the court holding that where the provisions of a will evince a design in the testator that át all events the lands are to be sold, in order to satisfy the whole intent of the will, then the power survives. In Peter v. Beverly, 10 Pet. 532, David Peter left a will in which he appointed his wife, his brother George Peter, and his wife’s brother Leonard H. Johns, executors, and provided that portions of his real estate should be sold for the payment of his debts. All the executors qualified. The widow and the brother entered upon the execution of the will, and subsequently died leaving debts still unpaid. The question was whether under the will George Peter, as surviving executor, could sell the real estate for the payment of the debts. The court decided that he could, the power being coupled with a trust. The court say : “ When power is given to executors to be executed in their official capacity, and there are no words in the will warranting the conclusion that the testator intended, for safety or for some other object, a joint execution of the power, as the office survives, the power ought also to to be construed as surviving; and courts of equity will lend their aid to uphold the power for the purpose of carrying into execution the intention of the testator, and preventing the consequences that might result from an extinction of the power; and where there is a trust charged upon the executors in the direction given them in the disposition of the proceeds, it is the settled doctrine of courts of chancery that the trust does not become extinct by the death of one of the trustees.” In the cases above cited, the power was given to the donees as executors. In the case at bar the power was given to Arnold and Allen as trustees. The difference is not material; for in equity *71 executors are regarded as trustees in so far as they are invested with dominion over the testate estate for the benefit of others, and, independently of any statute, the reasons for the continuance or survival of the power are as strong in favor of trustees as of executors. It will be observed that the courts in the cases cited build largely upon the presumed intent of the testator, and argue that the testator must have intended to have the power continue to exist without interruption, so long as any or either of the donees of the power continued to exist to exercise it, because it was through the exercise of it that he contemplated having his will carried into effect. The argument from presumed intent is very cogent in the case at bar. Evidently the testator here meant to have the real estate sold at all events, and to have the proceeds of the sale invested so as to yield an income to be applied by the trustees as directed for the benefit of his daughters. The power is given to the trustees jointly, even if the estate, under our statute, goes to them as tenants in common. And see Randall v. Phillips et al. 8 Mason, 378. It is true the testator expresses his desire, in case of the death, resignation, refusal, or inability to act of either of the trustees, that the vacancy shall be filled by the other trustee ; but the expression is not in our opinion equivalent to an absolute command, and we think therefore that it does not warrant any inference that the testator did not intend to have the power go to the sole accepting or surviving trustee, to be executed by him alone, if he should not think it expedient to appoint an associate. It will be noticed, moreover, the will makes no provision for vesting in the new trustee, if appointed, his proper portion of the estate ; and therefore, if it be supposed that the power did not go to the sole accepting trustee because the entire legal estate did not go to him, that is a defect which his appointment of a new trustee could not remedy. Clearly-such a construction would defeat the intention of the testator. Under the will the cestuis que trustent were entitled to the benefit of the provision made for them immediately and without intermission. If, therefore, the acting trustee did not appoint a new trustee and could not execute the power without one, they would have had to come to this court to supply the execution. It seems to us that the better view is that the power survived because it was coupled with a trust. *72 We declare it to be our opinion that the deed of Richard J. Arnold to William M. Bailey did convey to said Bailey a good title to the land described therein. Decree accordingly.