Gibbs v. Marsh

Wilde, J. This is an action of assumpsit for the alleged breach of a contract for the purchase of a lot of land, formerly belonging to the estate of Mrs. Mary Gibbs, deceased. Before the commencement of the action, the plaintiff tendered to the .defendant a deed of conveyance of the premises, which he declined to accept, on the ground that the plaintiff had not a good and valid title to the premises. The title of Mrs. Gibbs is not questioned ; but the defendant’s counsel deny that the plaintiff has derived any title to the premises from Mrs. Gibbs. And this question depends on the construction to be given to her last will and testament. By this will, the testatrix devised the whole of her real estate, and a portion of her personal estate, to her brother Walter Channing, his heirs and assigns, in trust to manage the same, and to pay the rents and profits to her children, or the issue of any deceased child, until the decease of all her children ; and upon the decease of the longest liver, then to convey and distribute the whole estate to and among her grandchildren and their representatives. By the 11th section, the said trustee is authorized to appoint a substitute or an associate in his said trust; and it is directed that said Walter Channing, and any trustee he may appoint, shall resign or be removed upon the application, in writing, of the children therefor. And “ to prevent a failure of trustees, to execute this will,” the judge of probate is authorized and requested to appoint such trustee or trustees to execute the trust in said will contained and created, as the said Walter Channing and the executors should recommend ; u and on failure of such recommendation, such trustees as the judge shall deem fit and suitable.” By the 13th section, full power and authority are given to the said Walter Channing, and any other trustee he may appoint, to sell and convey any part or parcel of the real estate devised tc him in trust, except two farms in Rhode Island, “ to hold to the purchaser in fee simple, discharged of said trust; or to ex [251] change the same for other real estate, when the major part of her children should recommend and advise the same.” It is admitted that by the 13th section, if not considered in connexion with other parts of the will, the power of sale is not given to the trustee appointed by the judge of probate, by whose conveyance the plaintiff derives her title, if she has any, from Mary Gibbs. But the question is, whether this power is not devolved upon such trustee by force of the 11th section, which authorizes the judge of probate to appoint a trusteee, u to pre vent a failure of trustees to execute the will.” It has been argued by the defendant’s counsel, that the power of sale is a naked, independent power, and in no way connected with the general trusts declared in the will; and that the testatrix, having special confidence in her brother and his nominee, intentionally limited the power of sale to them. That the testatrix had great confidence in her brother, cannot be doubted ; but not particularly in reference to the power of sale. She expresses this confidence as the reason for exempting him from the necessity of giving bond, and from any responsibility except for wilful default. But no such confidence is expressed in any trustee whom he might appoint. Nor can she be presumed to have had any special confidence in any person or persons unknown to her. She had the confidence, no doubt, that if her brother appointed a trustee, he would appoint a suitable person ; but there is no reason to doubt that she reposed a like confidence in the judge of probate. The principal question however is, whether the power of sale is a mere naked power, or whether it is not coupled with a trust. A naked power, as it is correctly stated by Sugden, in his Treatise on Powers, c. vi, § 3, is left to the free will and election of the party to execute it or not, for which reason equity will not say he shall execute it. But trusts are always imperative. Sometimes trusts and powers are blended. A man may be invested with a trust to be effected by the execution of a power, and if he refuse to execute it, equity, on the general rule that the trust is in the land, will carry the trust into execution ; as in the case where a power is given by a will to trustees, to [252] sell an estate and apply the money upon trusts. These principles and definitions are fully maintained by the cases cited by Sugden. The same principle as to powers blended with trusts is laid down by Lord Eldon, in Brown v. Higgs, 8 Ves. 574. “ If the power,” he says, “ is a power which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it or not; the court adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstance, to disappoint the interest of those for whose benefit he is called upon to execute it.” According to these well established principles, we cannot entertain a doubt that the power of sale in question is a power coupled with a trust, which requires the execution of it for the benefit of the children of the testatrix. By the 13th section of the will, full power is given to the trustees named, to make sale of any part of the real estate, when the major part of the testatrix’s children should recommend and advise the same, and to invest the proceeds in other real estate, or in personal estate, as the said children should direct and advise.” We do not apprehend that the testatrix intended to leave it optional with the trustees to sell or refuse to sell, on the request of the children. They were the donees of the power, and it was to be executed for their benefit, and the proceeds of the sale were to be invested in real or personal estate, as they should direct. This construction of the 13th section is confirmed by the 11th section, which provides, that in case the children of the testatrix should in writing request him, the said Walter, or any trustee or trustees by him appointed, to relinquish the trust, then the testatrix requests him or them to relinquish the trust accordingly. And in case said trustees or either of them should refuse to resign the trust, then the judge of probate is authorized to remove him or them from the office of trustee, and to appoint other fit and suitable persons in their stead. This provision is manifestly inconsistent with the discretion [253] supposed to be given to the trustees by the 13th section, to comply with, or to refuse to comply with, the request of the heirs to execute the power of sale. And besides, if the trustees had any such discretion, still the power was blended with a trust, and a court of equity would be authorized to compel them to execute the power, in aid of and to effectuate the trust; as was decided in Brown v. Higgs, 8 Ves. 574. It remains for us to decide the question, whether this power of sale has devolved on the trustee appointed by the judge of probate. By the 11th section of the will, the judge of probate was authorized to appoint a trustee, to prevent a failure of trustees to execute the will. The exigency for the exercise of this authority occurred on the death of the said Walter Channing, who died without nominating a successor, or having made any conveyance of the trust estate. And thereupon Ebenezer Francis was appointed a trustee, by the judge of probate, under the will. By this appointment, the trust estate vested in Mr. Francis, by implication, and by way of executory devise. By the will, an estate in fee simple is given to Walter Channing, in trust; but it is manifest that the testatrix did not intend that the trust should descend to the heirs of Walter Channing, some of whom might be minors, or otherwise incapacitated to act in the discharge of the trusts. The trust estate therefore vested in Mr. Francis, by necessary implication, so as to enable him to perform the trusts. Otherwise, he could not convey a title to Üw grandchildren, as by the will he is directed to do by the 8th and 9th sections, which provide that the said Walter Channing shall and do, by legal and proper deeds and instruments for the purpose, convey, assign, and transfer all the trust estate to the testatrix’s grandchildren : So that the suggestion of the defendant’s counsel, that the testatrix intended that the use should be executed in the grandchildren under the will, and without any conveyance from the trustee, cannot be maintained. We consider, therefore, that the whole trust property vested in Mr. Francis ; he was bound to execute the will, and to perform all the trusts ; and as the power given by the 13th section [254] is coupled with a trust, it devolved on him, according to the authorities and principles already adverted to. The power of sale was an important power, especially in respect to the unproductive real estate ; and it is difficult to imagine any reason why it should not be executed by any trustee under the will, since the children alone had the power to direct the sale. We think, therefore, that the omission to allude in the 13th section to the trustee, to be appointed by the judge of probate, was an inadvertent, and not an intentional omission. The omission is immaterial ; for the doubt it has raised is satisfactorily removed by reference to other clauses in the will. Some reliance has been placed on the collocation of these clauses, but we do not think that circumstance can affect the construction of them. Taking the whole will into consideration, we are well satisfied that the testatrix intended that the trustee to be appointed by the judge of probate should have the same powers to execute her will, as were given to her brother. He was appointed to execute her will, that is, her whole will not before executed by her brother. If there were any legal difficulty in thus perpetuating the trusts, then by the St. of 1817, c. 190, § 40, the judge of .probate was authorized to appoint a trustee ; in which case the statute provides, “ that the estate, so given in trust by such last will, shall vest in the trustee or trustees, so appointed by the said judges of probate, in like manner, to all intents and purposes, as the same vested in the original trustee or trustees, under such last will.” But we are of opinion that the provision, made in the will for perpetuating the trusts, is a valid provision, and needs not the aid of the statute. And on the whole we think the plaintiff has a good and valid title to the premises, and is entitled to judgment. .