Wilson v. Snow

Mr. Chief Justice Shepard delivered the opinion of the ■ Court: 1. The first question to be determined is: Did the court ■ err in submitting to the jury the recitals in the deed from >- Adelaide Wilson, that she was surviving executrix, as evidence .• from which they might find that she had qualified as exeeu- - trix of the will of testator? This deed was more than fifty ' years old. There was evidence showing the loss of records in which the entries relating to the qualification and bonds, • etc., of executors ought to have been made. The executrix' was dead, and the plaintiffs had been living in the District during the entire period between the death of the testator and the beginning of their action. Dnder these circumstances. ¡ we think there was no error. Gray v. Gardner, 3 Mass. 399-402; Baeder v. Jennings, 40 Fed. 199 — 216; Willetts v. Mandlebaum, 28 Mich. 521; Doolittle v. Holton, 28 Vt. 819-823, 67 Am. Dec. 745; Tucker v. Murphy, 66 Tex. 355 — 359, 1 S. W. 76; White v. Jones, 67 Tex. 638-641, 4 S. W. 161. See. Taylor v. Benham, 5 How. 272, 12 L. ed. 149. Although the point was not made on the argument, it ihay:v be well questioned if any qualification of the executors, as->? - suming that they were made trustees of the land by the will, < was necessary or could have been required by the probate court. Qualification as executors was undoubtedly necessary ■ as regards the personal estate. But no probate of the will.as to real estate was then authorized. It would seem, then, as to the land, that the executors were like any other trustees, whose acceptance of the trust was all that was necessary; ann ' this acceptance may be established by the recital in a deed in execution of the trust. 2. The question upon which the case turns is whether the power of sale given in the will to the two executors, Adelaide ‘ Wilson and Thomas O. Wilson, survived the death of the latter. It is well settled that a naked power of sale, not coupled’ with an interest, when given to two persons, does not survive the death of any one of them. If there be a discretionary"'" [568] power to sell, without any words vesting an interest or creating a trust, it is a naked power that does not survive. Peter v. Beverly, 10 Pet. 532-564, 9 L. ed. 522-535; Taylor v. Benham, 5 How. 233-268, 12 L. ed. 130-147. It remains to consider whether the testator’s will conferred a power of sale, coupled with a trust, that survived the death of one of the executors or trustees. The widow took a life estate by the will, forfeitable by marriage, but coupled with a trust on behalf of the children, that could have been enforced, if necessary, for their education and support. In case of her marriage or death, the entire estate was to pass to Thomas O. Wilson in trust for the use and benefit of the children, who, at the time of the testator’s death, were all infants. Finally, a wish is expressed that the estate shall be sold by the executrix and the executor, should they at any time deem it best, for the benefit of the wife and children; and they are empowered to exercise a sound discretion in the management, disposition, and investment of the said estate for the •wife and children. This management, disposition, and investment extended to the entire estate, which consisted of personalty and realty, before any sale, as well as to the proceeds of any sale that might be made. In our opinion, this created a trust in the executors, although they were not named as trustees and no express words of trust were used. See Pom. Eq. Jur. sec. 1011; Tobias v. Ketchum, 32 N. Y. 319. This being the case, the power of sale- survived under the rule stated. The court did not err, therefore, in charging the jury that the deed of Adelaide Wilson passed the title. 4. It has been further urged in support of the judgment that this is the ease of a power given to executors virtute officii, which, for that reason also, survived. In view of the conclusion reached as regards the trust, it is unnecessary to determine this point. [569] For the reason heretofore stated, the judgment will be affirmed, with costs. Affirmed. On application of the appellants, a writ of error to the Supreme Court of the United States was allowed, and was issued November 8, 1910.