Allen v. Alliance Trust Co.

Caliioon, J., delivered tbe opinion of tbe court. Tbe very able brief of learned counsel for appellant states tbe rule as to tbe meaning of the phrase “legal representatives” as we understand the best modern authorities to define it. The phrase has no hard and fast meaning’. It usually means executors or administrators; but it cannot, of course, mean executors and administrators only, in whatever instrument it may appear, and with reference to all the different subject-matters treated of in the multitude of varying instruments, and no matter what the plain purpose of the maker of the instrument using the phrase may be in using it. The court construing the meaning of the phrase arising upon the face of a particular instrument having reference to a particular subject-matter must seek to find the purpose of the party using it in using it as he does. “The what and where, with whom, and when and why” of the use of a phrase in any particular case must all be considered to reach a proper conclusion as to what the phrase may mean just in that case. So the authorities clearly demonstrate that it may, in various circumstances, mean executors, administrators, heirs, legatees, assignees, and devisees, even while legatees or devisees are strangers; in short, it may mean any person or corporation taking the beneficial interest in property, real or personal. One is not usually within the definition of “legal representative,” however it may be as to the phrase “personal representative,” unless he represents the other in beneficial ownership. The words of the power to be construed in this case are as follows: “In case of the refusal, neglect, or incompetency to act of said trustee, or his absence from the state or his decease, then said party of the third part (the Alliance Trust Company), or any holder of said note or notes, or their legal representatives, can, at any time they may desire, appoint a trustee in the place of the said party of the second part (the original trustee, Currier), or any succeeding trustee, whose acts done in the premises shall be of the same validity as if done by the [329] trustee hereinbefore named.” The power to appoint a substituted trustee is vested in three classes of persons: First — In the beneficiary company, the corporation itself. Second- — -In any holder of the note or notes secured. Third — “Their legal representatives.” There is not, on any fair construction of these words, any delegation of power to the trustee in the deed to appoint a substituted trustee in this deed of trust, nor are there any words which authorize the trustee in this instrument to delegate any personal confidence or trust or discretion in or selection of a substituted trustee to any attorney in fact or agent of the corporation. Undoubtedly, a power of this kind may be so drawn as to delegate the personal confidence or trust or discretion to appoint a substituted trustee to the first trustee. If parties choose, they can so empower the first trustee to delegate the personal confidence or trust, but the difficulty here is that no such authority is given the first trustee. Who may appoint, in the exercise of this power, the substituted trustee? The corporation itself may do so, acting in making such an appointment through its directors. The trustee in this instrument is not the corporation, nor is the attorney in fact Caldwell. Any holder of the notes may also appoint. The crucial question in the construction of the clause having the power is, who are meant by the phrase “their legal representatives?” We think they mean the legal representatives of the holders of the notes. This appears to us clearly to be so from several considerations: First — The collocation of the words indicated. Second — The use of the plural pronoun “their” so indicates. Third — And chiefly the phrase “legal representatives,” as applied to the holders of the notes, would seem, in this connection, their executors or administrators, and this use of the phrase is perfectly proper as applied to natural persons, and wholly improper as applied to corporations, in this sense, since they never die and never have any legal representatives. It is well observed, too, by learned counsel for appellees, that not to so hold, but to hold that the agent or attorney in fact [330] of the corporation satisfies- the phrase “legal representatives,” would be assigning to the very same phrase in the very same sentence the meaning of executors or administrators as applied to natural persons, and of agent, in its broadest sense, as applied to corporations. Manifestly, whatever “legal representatives” meant in this sentence, it meant the same thing for the corporation and natural persons. Fourth — As we have said in the outset, any person or corporation which takes beneficially from another person or corporation may, if the particular instrument and the particular subject-matter show that plainly to be the purpose in using the phrase, satisfy the meaning of this phrase “legal representatives,” and in that view the assignee of a corporation may be the legal representative in a proper case. So those appointed by statute or otherwise to wind up the business of an insolvent or dissolved corporation may be its legal representatives, but it is perfectly manifest that the agent and attorney in fact, Caldwell, in this case took no beneficial interest whatever in this property. He had no duty to perform in respect to the matter of a sale, except to make the sale, execute the conveyance, etc. The particular power which he exercised here was the power to appoint a substituted trustee, and this power could be exercised alone, under the terms of this instrument, by the corporation itself, or some assignee taking a beneficial interest in the property. We are therefore of the opinion that this case may properly be decided by a mere construction of the terms of this power; and in construing them we hold that the-agent and attorney in fact, Caldwell, had no power to make this sale, and hence it was absolutely void. It is useless to refer to authorities showing that the rule of construction as to powers is strictissimi juris. This court has gone farther, perhaps, than any court in the Union in upholding that doctrine. We wish to say a cautionary word. We are not to be understood as holding now that one can repose a personal confidence or trust in a corporation. The doctrine of delectus per [331] sonae, which vitalizes this whole doctrine of special confidence and trust, properly enough applies to the selection of a natural person in whose integrity and confidence the donor of a power may confide, because he knows the donee to be of such honor as to specially fit him for the trust. But a corporation, conceived of as an abstract legal entity, it might be argued, is not such a donee of a power as can have trust reposed in it- because of confidence in its personal honor. And it might further be said that its directors, at the time of the vesting of the power under the' instrument, may be regarded as constituting, within the scope of the delectus personae doctrine, the personality of the corporation; yet they may be wholly changed every year or otherwise, and so, if person or personality, if that term better pleases, in whom, in this view, the confidence would have been reposed, being gone, the corporation could not exercise the power which manifestly the grantor had intended it to exercise. And it may further still be said that, when reference is had to the nature of this delectus personae doctrine, this doctrine of reposing confidence and trust because of known integrity, on the one hand, and, on the other, to the nature and legal constitution of a corporation, it ought to be manifest that the doctrine can have no proper application to a corporation, but that a court should always hold on this point — construing this sort of power, vested in a corporation by this sort of instrument — that the grantor did not give the power to the corporation under the influence of the delectus personae doctrine, but that power so to appoint was purchased by the corporation as a part of the consideration named in the instrument, to be irrevocably exercised by it. We repeat, we are not to be understood as announcing any holding on either of these propositions, because decision here only requires a proper construction of the terms in which the power has been couched. Of course the appellant must do equity if he seeks equity, and just as certainly he would be estopped to set up any statute of limitation against the enforcement of the claim, and the ap [332] pellee has nothing still to do except to enforce its security in the proper way. But this sale is absolutely void, and no title passed under it; and this seems to be the only point which the court below adjudged. At all events, it is the only point which we adjudge, and on this proposition the decree is affirmed. It-will be noted that we have not cited an authority, since they are fully and discriminatingly collated by the counsel on both sides in their unusually able briefs. Affirmed.