Draper v. Montgomery

Smith, J.: Section 2642 of the Code of Civil Procedure in part provides: “ And where any powers to sell, mortgage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees, and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify shall be equally valid as if the other, executors or trustees had [66] joined in such sale.” If in this 'will the words, “ and to any two of them/’ had been omitted the right of this executor and trustee to-give a deed would see'm to be clearly ¡ assured by the -statute: Unquestionably -the testator had the right to provide that ho deed should be given except by at least two of his trustees. ■ If such were 1ns intent the title which the plaintiff offers is not a good title and the defendant should have judgment. We are of the opinion, however, that the words quoted were not intended as any restriction upon the-powers of the. trustees under the law, but rather'as an enlargement of their powers by providing that a deed should be valid if given by two only while three were ■ acting as trusteed. Were it not for this provision if the three trustees had qualified a valid deed would require the signature of all the trustees: "To make unnecessary the strict requirement of the law and to the end that the trust which he created might be the more easily executed these words were included. It is. stated" upon the argument that the tes-tator was a lawjeii and also that upwards of one hundred conveyances had been made by this single trustee. " We deem it extremely improbable that the testator intended uponlthe renunciation of two of his trustees to leave his remaining trustee practically stripped of the power to beneficially execute the trust. There is -no clearly-indicated intention to make inapplicable the "provisions of section 2642 of the Code of .Civil Procedure quoted. Without the- intention só. to do clearly manifested the general rule of law as expressed in this section must prevail, Two cases are" cited by the defendant to sustain his contention. The first is the case of Herriott v. Prime (87 Hun, 95). The other is the case of Hyatt v. Arguero (14 Civ. Proc. Rep. 286). In the Harriott case power to sell and dispose of the estate was given to two trustees, “In such manner and. on such terms as they shall ■jointly consider beneficial and for the interest of my said estate,, with full power to convey by deed joi/ntly and not singly, as I might or could do if living.”" In the Hyatt case the authority to sell any part of his real estate was given “In their joint discretion — that is to say, one is not authorized to -sell or exchange without the consent and co-operátion of the other — and to give valid, deeds of .the same to purchaser.” In these two. cases the provisions of the will were construed as clearly expressing the intention of the [67] testator that the power thus given should not in any event be exercised by one only of his trustees. Judgment should be directed for the plaintiff. All concurred. Judgment directed for the plaintiff, without costs.