Atwater v. Perkins

Park, C. J. This case grows out of the first clause of the will of J. M. L. Scovill, which is as MIoavs: “I hereby constitute and appoint John Buckingham of said Waterbury to be sole executor of this my last will, directing my executor to pay all my just debts and funeral expenses out of my estate; and I hereby give full power and authority to' my executor, according to the best of his judgment, for the benefit of my estate, at any time during the settlement of my estate, to sell or to exchange for other property any part of my estate, real, personal or mixed, at such time or times, upon such terms and in such manner as he shall deem expedient, and to re-invest the proceeds of any such sale in other property, or to apply the same to the payment of my debts, as he shall deem expedient ; and to sell or to exchange for other property any part of the property, real, personal or mixed, which I hold as surviving partner of my brother, W. H. Scovill.” In the second clause of the will the testator devised all [197] his estate to the same persons who would be entitled by law to receive the same if the testator had died intestate. During the settlement of the estate the executor exer-' cised the power conferred upon him by the will, and sold a part of the land belonging to the estate, and in the deed of conveyance gave the grantee the right to construct and maintain an underground sewer from the premises conveyed across a portion of the adjoining lands belonging to the estate. The sewer was constructed in accordance with the grant, and subsequently to the settlement of the estate the land, incumbered by the sewer, was conveyed to the defendant, and bjr him to the plaintiff, by warrantee deeds with covenants that the land was free from all incumbrances whatsoever, except a certain mortgage. These are the principal facts, and upon them arises the question we are called upon to determine — whether the executor, in making a conveyance of a part of the estate, had authority by the will to incumber other lands which were not conveyed ? This question depends upon another and that is, whether the power, conferred upon the executor by thb will, is a mere naked power to sell the land, or a power coupled with an interest in the land? If it is of the former character, then all the authorities agree that the executor had no power to make the incumbrance in question. But if of the latter character, then the same authorities agree that he had such power. The case therefore turns upon the nature and character of the power conferred. There is considerable diversity of opinion both in England and in this country in regard to what may constitute an interest in the land by implication, where power is given to the executor to sell, without any express words conferring upon him an interest in the land. But we are relieved from a discussion of the question,- and from the necessity of going elsewhere for authority upon it, by the decision of our own court. In the case of Bull v. Bull, 3 Day, 384, a will, which was before the court for construction, contained the following paragraph: “I appoint my brothers, James Bull and [198] Thomas Bull, executors of this my last will and testament, with full power to sell and dispose of any and every part of the estate belonging to me, in such way and manner as they may judge most beneficial for the legatees.” The eourt held: that this gave only a naked power to sell the land, without any interest on the part of the executors in it. It will be observed that the power here conferred is in substance the same as the one in question. In the case of Mansfield v. Mansfield., 6 Conn., 559, Mrs. Mansfield,-in consideration of certain indebtedness, gave to Messrs. Hitchcock and Ingersoll a power of attorney, the part of which important to the case is as follows: “ And they, or either of them, are hereby' authorized to sell and convey, by good and valid conveyance, in my name, all such lands, tenements and hereditaments as I now own, and also all such as I have or may have set to me as my dower in the real estate of my deceased husband; and, after paying themselves all dues and expenses, to account with me for the balance, if any, in their bands.”. The question to be determined by the court was, whether the power conferred by the instrument was revocable or not, and in considering the question the court use the following language, which is pertinent to the present inquiry: “ As a general legal truth, it is indisputable that a naked power or authority is revocable at pleasure, and that a power or authority coupled with an interest is irrevocable. The inquiry before the eourt is, whether the power in question was coupled with an interest; and to decide correctly on this subject, 'it is necessary that we clearly understand what is the legal meaning of this expression. A naked power exists when authority is given to a stranger to dispose of an interest in which he had not before nor has by the instrument creating the power any estate whatever. But when power is given to a person, who derives under the instrument creating the power, or otherwise, a present or future interest in the subject over which the power is to be exercised, it is then a power coupled with an interest.” The court then, after reviewing the authorities, proceeds thus: “ On a construction of the instrument, according to the [199] form of its expressions, and the object of the parties, I see no ground for this position, that the power is coupled with an interest. It professes to have been executed in consideration of a preceding indebtedness; but I am not aware that this gives any aid in its construction. A power without consideration is equally valid as with one; and the expression means no more than' that the indebtedness was the inducement in conferring the power in question. * * * They (Hitchcock and Ingersoll) however were authorized to sell and convey the estate mentioned in the power, in the name of the principal. It has been established law, from the days of Sir Edward Coke to the present time, that a power to sell and convey is a naked power. The only remaining clause supposed to confer an interest, declares that, after paying themselves all dues to them or either of them, and all expenses, the attorneys are to account for the residue. This expression has been supposed to show that the power created an interest in the estate to which it related, as security for the indebtedness before mentioned; but I am of a different opinion. The instrument contains no words of conveyance or of assignment; but is a simple power to sell, convey, and account.” And so the court held that the power was simply a naked power, without any interest-in the land. It will be perceived that the power in this case tended to show an interest in the land much more strongly than does the one in the case at bar. In Gregg v. Currier, 26 N. Hamp., 200, it was held “that a devise of land to be sold by the executor, without words giving him the estate, only invests him with power of sale.” The same doctrine was also held in Dexter v. Sullivan, 34 N. Hamp., 478. In Snowhill v. Snowhill, 3 Zabr., 441, it is said that “ a mere direction to executors to sell land is a naked power, and gives them no estate or interest in the land whatever.” But it is said that in the case under consideration the executor is authorized to sell the property belonging to the estate, and apply the proceeds in payment of claims against the estate; and it is claimed that this makes the executor a [200] trustee of the property, whieh requires an interest in the land in order to execute the trust. But it appears in the case that there was a large amount of personal property belonging to the estate, much larger than was necessary for the payment of all claims against it. There was, therefore, no necessity to resort to the real estate for such purpose. And furthermore, the selling of the property was left with the executor wholly discretionary, and the direction to pay the debts was no more than the law required to be done without any direction. In conclusion, we think that the power conferred upon the executor to sell the land in question was a mere naked power, without any interest in h'im in the premises sold to Rockwell, or in the adjoining premises, and that therefore he had no authority to create the incumbrance in question. We advise the Superior Court to render judgment in favor of the defendant. In this opinion the other judges concurred.