Corley v. Bishop

McLean, J., delivered the opinion of the court. This is a bill, filed by appellant, for the purpose of removing clouds upon the title of complainant to certain real estate. The bill alleges that Mrs. Mary Ann Hord was the owner in fee of the real estate described in the bill; that she made a certain will, and the trustees named in the will sold the property devised. Further, that there was more than ample personal property to pay all personal debts and obligations, together with the funeral expenses, of the said testatrix, belonging to her said estate at the date of her death. The will is in the following words: “Know all men by these presents: That I do hereby give and bequeath unto John Minor Hord and Mary Ann Hord all my property both personal and real, for the use of Mary Elizabeth Leilea and Julia Emma Hord. The proceeds of said property to be equally divided after my personal expenses are met.” It may be stated as a general proposition that the power of sale will be implied, wherever duties are imposed on the trustee which cannot be performed without it. There is some conflict in the authorities on this proposition; but the weight, together with the better reason, sustains this proposition. In Livingston v. Murray, 39 How. Prac. (N. Y.) 102, the law is thus stated: . “The general rule is that, if a sale of the real estate is necessary to carry out the purposes of the testator, the power to make the sale will be given by implication, as otherwise the intention of the testator might be defeated. In those cases, it will be presumed that the testator, having in view the duty imposed upon the executors of his will, intended they should sell his real estate, and omitted, through mistake or otherwise, to confer express power.” In Gray v. Henderson, 71 Pa. 368, Myer’s Appeal, 62 Pa. 107, Winston v. Jones, 6 Ala. 550, Putnam Free School v. Fisher, 30 Me. 523, and Belcher v. Belcher, 38 N. J. Eq. 126, the proposition is stated that an implied power of sale is [495] given to the executor, where the testator blends the proceeds of both real and personal estate into one fund for the purposes of distribution or accumulation. In Winston v. Jones, 6 Ala. 554, it is held that no precise form of words is necessary to the creation of a power, but if the intention to confer the power is apparent to enable the executor to execute the trusts of the will the power will be implied; and in 2 Perry on Trusts (Sec. 766) we find the rule stated to be that any words which show an intention to create a power of sale, or any form of instrument which imposes duties upon a trustee that he cannot perform without a sale, will necessarily create a power of sale in the trustee. See, also, extended notes to Rankin v. Rankin, 87 Am. Dec. 209, et seq. While some authorities draw a distinction between the duties, rights, and powers of executors and of a mere naked trustee as to the’payments of debts and distribution of the estate, yet the fact that the trustees in this case are not made executors we do not deem important. It may be that the testament did not impose upon the trustees the duty of meeting the personal expenses of the testatrix. This, however, is very doubtful; but it is certain that the duty was imposed to distribute the proceeds of . the property equally between the beneficiaries. While the word “proceeds” is sometimes equivocal in its meaning, yet, when taken in connection with its' context in this instrument, the inference must be that a sale was implied. Sometimes the word “proceeds” is construed to mean rents, issues, or income; but in the present instance we Cannot understand how the proceeds of the property can be divided until after the property is converted into money by a salé. Such was the construction placed by the lower court upon this will; and the case is affirmed. Affirmed.