Marks v. Tarver

BRICKELL, C. J.— The only fact which can be supposed to distinguish this case from that of Tarver v. Haines, 55 Ala. 503, is, that the sale and conveyance of the lands, was made by the two executors of the will of Benjamin F. Tarver, who had qualified—the executrix qualifying subsequently. In the case referred to, we decided that the statute, Revised Code, § 1609, forming section 2218 of the Code of 1876, had no application to, and did not affect a discretionary power of sale, conferred on executors as a matter of personal trust and confidence. That by the will of Benjamin F. Tarver, there was no devise of the lands to his executors to sell, nor was there a naked power of sale conferred on them. The power conferred was discretionary, resting in the trust and confidence the testator reposed in the executors and executrix collectively; and was incapable of being exercised by the executor continuing to act, after the resignation of his co-executor and the executrix. The whole theory of the decision, and the reasoning on which it depends, is, that a power resting on personal confidence in the donee, can not be extended beyond its express words, and the clear intention of the testator. If the trust and confidence is reposed in several, and the power conferred on them jointly, without doing violence to the terms of its creation, and the intention of the testator, it can be exercised only by all the donees. The power is not well exercised, if from any cause, one or more of the donees does not join in its execution. It is not material from what cause the failure to join originates. The neglect or refusal of the executrix to qualify, rendered the power as incapable of exercise, as did her subsequent resignation in the case to which we have referred. Affirmed.