Neel v. Beach

Mr. Justice Trunkey delivered the opinion of the court, January 5th 1879. Whether the 5th paragraph in this will, considered by itself, gives Charles E. Beach power to sell and convey real estate need not be determined; for there is another paragraph which authorizes and empowers the “ executors, Charles E. Beach and George F. Scott, or either of them surviving, to make, sign, seal, deliver and acknowledge any deed or deeds, or any other writing that may be necessary to carry out the intent and meaning of” the will. To ascertain the intention of any clause the whole will must be taken into view, especially the parts touching the same point. The fifth and sixth items together are reconcilable and consistent. By the former, in case of sickness or other inability of Charles to provide for himself and family, he is at liberty to use whatever may be necessary for that purpose; and he may invest the property in [226] business, or otherwise, as he may think best; and, by the latter, the executors are authorized to seal and deliver deeds, or other writings, that may be necessary to carry out the intent. The power intrusted to the executors is not a vain provision; nor is the one to Charles. It is required that the executors act in the conversion of real estate — this can only be done by them as trustees; and power is given to Charles, as an object of the testator’s bounty, to use .and invést property that is not permanent. If stress be put on the word invest, one of its senses is, “ to surround with or place in, a's property in business;” another, “to place so that it will be safe and yield a profit;” though it is commonly understood as giving money for some other property. It is not difficult to construe these provisions so both may have effect, and when that can be done the rule is, it shall be. Besides, it is reasonable that the testator should require the action of the executors for conversion of land, already a permanent investment for all the objects of his care, at the same time that he gave large power to his son for using and investing his property. The learned judge of the Common Pleas truly apprehended the main intention of the testator, which is, that all his estate shall eventually go to and be enjoyed by the children of his son Charles, excepting what may be necessary for specified uses. This also tends to show his purpose in placing the trust for sale and conveyance of his real estate in the executors. If both executors act, one alone cannot sell; if one acts, he is accountable and responsible as executor. That all the executors, whose renunciation is not of record, must join in the conveyance was decided in Heron v. Hoffner, 8 Rawle 393, in an exhaustive opinion, which has been accepted law in this state for nearly half a century. It should not be overruled or explained away. By writing filed, or by citation from the register and due course of proceeding thereon, the renunciation will appear of record; and not so appearing, it ought not to be taken to exist. The present ease of adducing oral testimony to sustain or overthrow an alleged fact, should induce a rigid adherence to all the safeguards of titles to lands. • The deed by Charles E. Beach to James Neel was by one of two executors, and therefore void. Scott’s subsequent renunciation does not 'ijjvalidate the void act of another man. The deed was not made by the proper persons in pursuance of the power and trust.When one acting for himself conveys land for which he has a defective title, and afterwafds acquires title, it shall vest in his grantee. An executor acts by virtue of a power to convey, and the power wanting, his act is a nullity. As the case stood, the judgment ought to have been opened. It was urged, that the plaintiff can make title and is ready and willing to do so. Possibly he has not executed and tendered a conveyance, since the renunciation of Scott, because of the con [227] struction given to the will in the court below. • For this reason, the case will be sent back to be further proceeded in, to the end that if the plaintiff, within a reasonable time to be fixed by said court, shall file a deed for the defendant, which the court shall adjudge to be good and sufficient as an executor’s deed, under the power given to. the executors in said will, then the rule may be discharged; otherwise made absolute, in accordance with this opinion. Decree reversed, at tne costs of appellees; and record to be remitted for further proceedings, as directed in the opinion filed.