Niles & Sherwood v. Stevens

By the Court, Bronson, Ch. J. At the common law, when executors have-a mere naked power to sell lands, they must all join in the conveyance, or the title will not pass. But under our statute, which is much like the 21 H. 8, c. 4, if any of the executors refuse or neglect to act, the sale may be made by those who take upon.themselves the execution of the will. (1 R. L. 366, § 11; 2 R. S. 109, § 55.) If the executors are not directed by the will to sell, but only have authority in their discretion to make sales, it has been held in Kentucky that the case is not within the statute, and all must join in executing the power. (Woodbridge v. Watkins, 3 Bibb, 349: Clay v. Hart, 7 Dana, 1.) The words of our statute favor that doctrine : they are, when any lands shall be “ ordered” to he sold. But if such be the rule in relation to a naked power, there is room for question whether the construction is not too narrow for a case where the power is coupled with an interest, and is given to the executors virtute officii. A power of this kind [403] survives on the death of one or more of the exectitors, and may oe executed by the survivor: and there is mutih reason for saying, that the statute has made the refusal of an executor to act, equivalent to his death, for all the purposes of the execution of the power. (Jackson v. Ferris, 15 John. 346; Jackson v. Given, 16 id. 167; Jackson v. Burtis, 14 id. 391; Franklin v. Osgood, id. 527; Peter v. Beverly, 10 Peters, 532; 4 Kent, 326; Lessee of Zebach v. Smith, 3 Bin. 69.) But it is not necessary to dispose of that question at- this time; for here is something more than a power. The lands are devised to the executors; and in such a manner as to give them the legal interest in the estate, Upon the trusts mentioned in the will. And it is settled, that when lands are devised to two or more persons in trust, and one of them refuses to act, if is a good devise to such as do accept the trust, and the estate vests in them. (Smith v. Wheeler, 1 Vent. 128, 130, per Hale, C. J.; Crewe v. Dicken, 4 Ves. 97; Nicholson v. Wordsworth, 2 Swanst. 369; Adams v. Taunton, 5 Mad. 435; 438; Bonifaut v. Greenfield, Cro. Eliz. 80; 1 Leon. 60, S. C.; Matter of Stevenson, 3 Paige, 420.) It is the same thing, in effect, as though the renouncing trustee had been dead, or had not been named in the will. (King v. Donnelly, 5 Paige, 46.) As Hayes renounced the trust, this was a devise to Mrs. Sherwood alone. She took the whole estate; and along with it she took the power, and assumed the responsibility, of executing the trusts created by the will. In Bonifaut v. Greenfield, as reported by Croke, one of the four executors to whom the land was devised in trust, refused to act; and it-was held, that a sale by the other three was good at the common law; though it was added, that the statute, referring to 21 H. 8, c. 4, "maketh it clear.” It is of no consequence in this case whether the sale stands upon the statute, or the common law; but if the principle be a sound one, that the renouncing trustee is to be wholly disregarded, it is clear that there was a good common law execution of the trust. If there be any difficulty in the case at the common law, I should agree with what was said' in Croke, that the statute [404] makes it clear. Our statute is broader in its terms than the English statute, and extends not only to cases where lands are ordered to be sold, but to cases where lands are given or devised to executors to be sold. It is a beneficial law, which should be liberally construed. (Coke Lit. 113, a.; Roseboom v. Mosher, 2 Denio, 61.) And I see no sufficient reason for restricting its influence to cases where there is a positive direction to sell. The fact of devising the land to the executors instead of giving them a mere power over it, shows that the testator intended they should exercise a large discretion. And although the trust was to lease as well as to sell, it is evident from the fact that the testator wished to make the estate as productive as possible, and from the doubt which he expressed whether the income would be sufficient to provide for his wife and children, that he intended a sale of the farming lands, at the least; for in this state such lands will rarely bring a rent which is equal to the interest on the capital for which such property can be sold. And besides, it is highly probable that the final distribution of the estate, which was confided to the executors, will render it necessary to sell the whole or the greater part of the property. The statute can be of little use if it do not cover a case like this. There are cases where the confidence reposed in the trustees is of such a nature that nothing can be done except in the particular way which the testator has prescribed. It is so where he has omitted to designate the particular objects of his bounty; and has left the selection to the discretion of the trustees. (Cole v. Wade, 16 Ves. 27; Walter v. Maunde, 19 id. 424; Hibbard v. Lambe, Amb. 309; Down v. Worrall, 1 Mylne & Keene, 561.) But there is nothing of that kind in this case. There is no personal confidence here beyond what is common to almost every trust. The testator has directed the executors to “ exercise a sound discretion in leasing and selling the lands;” but that is no more than the law would have enjoined as a duty, without any such direction in the will. We see no good ground for holding that this case should not fall .vithin the operation of the statute. [405] The deed from the executrix to Allen, and the other conveyances which the defendant proposed to read, should not have been rejected. New trial granted.