Bartlett v. Sutherland

Mr. Justice Yerger delivered the opinion of the court. In the year 1848, Isham Stewart made his last will and testament, containing among other clauses one in the following words: “ I further will and deshe, that my executors hereinafter named shall be at liberty at any and all times, to sell or dispose of any part of my estate at private sale, if in their judgment it will promote the interest of my estate ; and that they shall be at liberty to sell for cash or on a credit, without any order of court for that purpose; and that they be permitted to compromise or arrange, at their discretion, any lawsuit or' debts that may be against me or my estate.” By another clause, he appointed his “friends, Benjamin B. Frizell, Hugh A. H. Lawson, and John H. Dalton, his executors.” The testator died. The will was duly admitted to probate. Lawson and Dalton refused to qualify as executors, and letters testamentary were granted to Frizell alone. Subsequent thereto, Frizell, acting under the foregoing clause of the will, made a sale of a tract of land belonging to the estate ; and the question presented by this record is, whether a private sale made by him alone, without an order of the probate court, is valid or not. It is conceded, that by the common law, where a naked power is given by will to two or more persons as executors to sell land, or to do any other act, it must be executed by all jointly, in order to be válid. Franklin v. Osgood, 14 Johns. R. 553 ; Co. Litt. 112 b, 113 a, 181 b; Powell on Dev. 292, 310. The rule seems to be equally well settled, that if the power to sell lands be coupled with an interest in the executors or agents so appointed to execute the trust, then, on the death of one or more of the executors, the survivor or survivors may lawfully execute the power. Franklin v. Osgood, 14 Johns. 553; 1 Caine’s Ca. in Error, 15 ; 3 Salk. 277 ; 3 Atk. 714; 2 P. Williams, 102; 10 Peters, 565. It has likewise been held, that where the terms used in creating the power, detached from the other parts of the will, confer [402] merely a naked power to sell, and yet the other provisions of the will evince a design in the testator that the lands should be sold at all events, in order to satisfy the whole intent of the will, there also the power survives. In this latter case, it is not a naked power, in the' sense of Lord Coke’s general rule, but is coupled with other trusts and duties which require the execution of the power to sell. Franklin v. Osgood, 15 Johns. 553, and cases there cited. To obviate inconveniences, which were found to result from the strict rule of the common law on this subject, a statute was passed in England in the reign of Henry VIII., which authorized the executor or executors qualifying, or the survivor of them, to make a valid sale of lands devised by the will to be sold. A similar statute has been enacted in this State. Hutch. Code, 671. It is contended for the plaintiff in error, that in all cases, where the power of sale is given to the executors, “ qua executors, and not nominatim,” the power may be exercised by such as qualify, unless the will expressly points to a joint execution; Sugden on Powers, 144; that in the present case, as the power was to the “ executors,” and not to individuals by name, inasmuch as the executors are bound to pay debts, it is a power coupled with an interest, which will justify the executor taking the trust upon himself to act alone, and at any rate the sale is valid by virtue of the statute. While I readily yield my assent to the rules laid down in the authorities cited by counsel, yet my mind has reached a different conclusion® In the opinion of Chancellor Kent, in the case of Franklin v. Osgood, 2 John. Ch. R. 21, afterwards affirmed by the supreme court, he states the rule to be, that “ the intention of the testator is much to be regarded in the construction of these powers, and they are to be construed with greater or less latitude in reference to that intent.” Applying this rule to the construction of this power, our minds are brought to the conclusion that the testator looked to a joint execution of it. It is not, as will be seen on reference to the will, a devise of the land to be sold at all events. But [403] it is.a naked power or authority to the “executors thereinafter named,'to sell or dispose of any part of the estate at private sale, if in their judgment it will promote the interest of the estate.” We take the rule to be clear and indisputable, that wherever a power to act is conferred upon two or more, and it is dependent upon then* judgment whether the act shall be done or not, the power conferred in such case is a special trust or confidence reposed in the judgment of all; and without the concurrence of all, the power cannot be exercised. Such was the rule established by the supreme court of Kentucky in the case of Wooldridge’s Heirs v. Watkins, Executor, 3 Bibb, 349; and we believe it to be the true one. We do not conceive that the clause in the will before us is a devise that the executors shall sell the testator’s land ; nor is it a devise of the land to be sold. On the contrary, it merely gives authority to the executors to sell the land at private sale, if in their judgment such sale would promote the interest of the estate. The testator evidently contemplated an act of judgment and reflection to be exercised by his executors before this sale should take place, and that confidence was reposed in the whole executors, and not in one. The power was to his “ executors thereinafter named, if in their judgment,” &c. We can readily conceive, that a testator might be willing to répose a power to sell his real estate at private sale, to the joint judgment of all his executors, when he would not be willing to trust so great a power to the discretion or judgment of a single one. Believing this to be the true construction of this will, we think the sale made by the acting executor was void, and conferred no title on the purchaser. Nor do we believe that the statute on this subject, (Hutch. Code, 671,) is applicable to this case. That statute is only applicable in its terms to “ the sale and conveyance of lands devised to be sold.” As before remarked, we do not look upon this will as a devise of 4ands to be sold, but only a power or authority conferred upon the executors to sell, if in their judgment it would conduce to the interest of the estate to make the sale. And this power, we conceive, it was the intention o [404] the testator should only be executed when, in the judgment of all the persons named by him as executors, they should deem it proper to be exercised. It was a special trust and confidence reposed in the judgment of three, which, in our opinion, the testator did not intend to repose in the judgment of a less number. Let the judgment of. the circuit court be affirmed.