151 Ky. 800 | Ky. Ct. App. | 1913
Opinion op the Court by
'Affirming.
The will of John W. Wallace was probated in 1883. In the fifth clause thereof, the testator devised to Thomas H. Wallace and Austin Peay certain property, in trust, for the use and benefit of hlis daughter, Caroline K. Wal
The clause of the will of Wallace, under consideration is as follows:
“I give and devise to Thomas H. Wallace and Austin Peay as trustee in trust for the use and benefit of my daughter, Caroline K. Wallace, two hundred and seventy-two and three fourths (272 3-4) acres of land taken from my farm in Christian County, Kentucky, near Garrets-burg and embracing my late residence lately surveyed by H. P. Rives and bounded as follows:
(Here follows description.)
Also one-third (1-3) of my lots in Parkland, Jefferson County, Kentucky, and one-third (1-3) of the said lot of ground situated -on 15th Street in Louisville, Kentucky, same conveyed to me by R. B. Alexander, trustee, &c., and also twenty-five (25) shares or twenty-five hundred dollars of my stock in Bank of Hopkinsville, the use, benefit and profits of said land, lots in Jefferson County and Louisville as also said Bank stock to go to my daughter, Caroline K. Wallace, during her natural life and at her death said land, lots -of ground and Bank Stock to go to her children and if she should die leaving no chil
The sole question for determination is: Was Thomas H. Wallace one of the named trustees empowered to sell and convey the property described in this clause of the will, when his co-trustee, Peay, refused to accept the trust, and, of course, did not join with him in making the sale and conveyance?
The authorities are agreed that, if, when fairly construed, the language used by the testator may be said to create a naked power, that is, a simple personal confidence reposed in the trustees by the testator, then, in order to pass title, it was necessary for both to qualify and convey; and the failure of one so to do necessarily had the effect of invalidating the conveyance. If, on the other hand, the effect of the language was to create a power, coupled with an interest, then the trustee who did qualify and, in pursuance of the authority granted, made the sale and conveyance, passed a perfect title. Hill on Trustees (3rd Am. Ed.) pg. 472; 21 Cyc., 1106; Perry on Trusts (2nd Edition) p. 488; Story’s Equity Jurisprudence (7th Ed.) sec. 1062.
With the view of ascertaining the intention of the testator, this provision of the will should- be read in the light of the attendant circumstances surrounding its draft and execution. This is the daughter, for whom
In the case of Woolridge’s Heirs v. Watkins, 6 Ky., 3 Bibb, 349, decided in 1814, it was held that a mere naked power to sell, not coupled with an interest, could not be executed by one of two joint executors, but that the action of both was required.
“By the common law, if an authority, without an interest, be given to the executors, to sell' land, a sale is not valid, unless they all unite in it; because the authority is delegated, and the trust confided to all, and .to no less number than all. But if the land be devised to the executors to sell, those who shall qualify, may execute the power, because the power to sell is coupled with, and is incidental to the title, vested by the will, which is in such only as shall qualify.”
This principle was reaffirmed four years later, in Muldrow’s Heirs v. Fox’s Heirs, 2 Dana, 74; and in Clay & Craig v. Hart, 7 Dana, 1, the same principle was announced in the following language:
“According to the common law, also a power coupled with the legal title or a personal interest would survive to the survivor or survivors of several persons upon whom the power and interest or title had been conferred; because, as the interest or title survived, the power might be fed and kept alive by it, and should therefore also survive. And hence, if the trustees of the power were devisees, not of the power merely, but of the legal title also, any one survivor might execute the power.”
Further citation of authority upon this point is deemed unnecessary.
The will of .the testator, by the fifth clause, invests in the named trustees a power, coupled with an interest, and the failure of one of said trustees to act cannot have the effect of defeating the trust; but the right to carry it into effect, or to execute it, passed to the trustee who did qualify. As he was clothed with ample power to sell and convey the one-third interest devised to him for the use and benefit of Caroline K. Wallace, his vendee, Berger, acquired, by reason of his purchase, the absolute fee simple title to said property. The chancellor correctly so held, and the judgment is affirmed.