Bradford v. Monks

W. Allen, J. When the new trustee was appointed, he had, by force of the statute, the same powers, rights and duties as if he had been originally appointed, and the estate vested in him as it had vested in the trustee in whose place he was substituted. Gen. Sts. c. 100, § 9. If the power of sale attached to the trust, and was not personal to the former trustee, it would pass to the new trustee as part of the trust. It seems clear that the testator intended that the power should be exercised by his trustees as such. The entire legal estate is given to the trustees to hold and manage; they are to convert the personal estate into money, and to “ manage and take care of, according to their best ability and skill, my real estate, repairing, leasing, letting, and, if necessary, rebuilding, and receiving the income thereof; ” they are to apply the income of the ■ real estate and the proceeds of the personal, according to the directions of the will, until the decease of all the testator’s children, and then to make over the estate to his grandchildren. Immediately after these directions follows the provision in question : “ And I authorize my trustees, if they think best, to sell and convey such of my lands as are at South Boston, or any part of such land at South Boston, and to invest the proceeds of the sales of such estate or lands with the proceeds of the sales of my personal estate in United States or state securities or city of Boston scrip, or in first-class mortgages of real estate.” The lands at South Boston were unimproved, and the testator evidently 408 intended to authorize a sale of them, at any time during the continuance of the trust, when it should seem to the trustees to be for the advantage of the estate that they should be sold. The discretion given to the trustees is a part of the trust, and the power of sale is to enable them to execute that trust. It is a power coupled with a trust. The terms in which the power is given, the general provisions of the will, and the character and condition of the estate, are sufficient to show this; and the fact that the testator gave directions to the trustees authorized to make the sale as to the investment of his personal property, indicates, that he understood that the sale would be made by the trustees who had charge of the personal property. Gould v. Mather, 104 Mass. 283. Nugent v. Cloon, 117 Mass. 219. Bill dismissed.