Cresson v. Ferree

The opinion of the court was delivered, February 5th 1872, by Sharswood, J. That the testator Adam Everly intended to invest the trustees named in his will with a general power of sale over his residuary estate, is altogether incontrovertible. This appears not only by his express language, but by the exception of that part called Emlenton, for at least a period of ten or fifteen years after the decease of his wife. It’ was evidently not merely a power in the trustees over their respective estates, in the land, but a collateral naked power over the whole land itself. The object of the power was manifest — that the land otherwise unproductive might, whenever suitable, be brought into the market, and made available for the purposes of the will. It was beneficial, and therefore to be liberally construed, because while testators are thereby enabled to subserve the true interests of their children by limiting to them only life estates, the growth and improvement of the city are not obstructed. Was this a valid power of sale originally, or has anything occurred since which renders its present exercise invalid ? The donees of the power are perfectly certain — and the subject-matter over which it is to be exercised. So is the time within which it is limited. We may concede that a general power over an estate without limitation of time — unless after an estate tail — would violate the rule against the creation of perpetuities. In this case, however, the power of sale is clearly limited to the period during which the trusts created by the will subsist, or some of them; and that cannot exceed a life or lives in being at the death of the testator. Upon the death of the daughters the trusts respectively cease, and the shares discharged of the trusts become executed in their children, who will thereupon be entitled to a conveyance from the trustees. This very point was considered and decided by the Master of the Bolls, Sir John Bomilly, in Tait v. Swinstead, 26 Beav. 525, where an estate was devised to trustees for different persons in fifth shares, some of which shares’ were given to living persons absolutely, and the others to living persons for life with remainder to their children in fee, and an unlimited power of sale over the whole estate was given to the trustees : it was held that this power of sale was valid, and could be exercised over the whole estate, so long as any of the trusts of any of the shares remained to be performed. Nor has anything since occurred to render the exercise of the power invalid. The trustees appointed by the Orphans’ Court in the place of Morris Patterson, who declined to accept the office, are clearly invested with all this power. “ In all eases where any trustee or trustees created or vested with authority by the last will and testament of any deceased person, or any writing testamentary in the nature of a will, shall die, resign or be otherwise removed from the trust, the Orphans’ Court of the proper county shall have power and authority to appoint another trustee or [450] trustees, to supply the vacancy occasioned by such death, resignation or removalAct of April 22d 1846, § 1, Pamph. L. 483. What has already been observed evinces that the power is not affected by the fact that some of the trusts have ceased, because it is entirely collateral to the respective estates of the trustees. Judgment reversed, and now judgment for the plaintiffs for the sum of $15,700, with interest from December 16th 1870, recoverable on the execution and delivery or filing in court of a deed of conveyance of the property described in exhibit A annexed to the case stated.