2 Mich. 531 | Mich. | 1853
The plaintiff in this cause claims title under a deed of conveyance executed to him by MaryJ. Ladd and Ira Merrill, administratrix and administrator, with the will annexed, of Herman Ladd, deceased. The deed was executed by" the grantors, by virtue of the power and authority given to them by the last will and testament of the said Herman Ladd, deceased, and of the letters of administration to them granted thereon, and the question, is, whether they had the power by virtue of this will and their letters of administration to execute the deed. The clause of the will under which the power is claimed, is as follows:
“Fourth. I order and direct my executor’s or administrators to sell all my real and. personal estate to the best advantage, and invest the proceeds in good securities on unincumbered real estate, at not more than half its value, under the advice and direction of the surrogate of Livingston County, and I hereby authorize them to sell my real estate, and to execute good and sufficient deeds for the same to the purchasers-thereof.”
No beneficial interest is given by the will to the donees of the power, but the proceeds of the property are given to certain persons and classes of persons therein named. This is a general power in trust, and is imperative. ■ (JR. S. ch. 64, § 5, 22, 24.) The objection to the validity of the deed in the Court below, was, that it did not appear that the sale of the land had been authorized by the license of any probate court, but purported to be executed solely by virtue of the power given to the administrators by the will, and of the letters of administration.
That case differed from this in two particulars. The executor to whom the power was given, was named in the will, and after his death, administration de lonis non, with the will annexed, had been granted. But the material question involved in this case, was also involved in that, and was very fully and ably discussed by the learned Judge who delivered the opinion, and who, with his usual industry and research, has collected and collated the authorities bearing upon it, and developed, as I think, with great accuracy and clearness, the trae principle upon which they rest. He arrives at the conclusion as the result of his analysis of the cases, that the office of an executor is entirely separate and distinct from that of the donee of a power in trust, and that the latter is an authority which, so far from having any reference to the office of executor, might just as well have been conferred by the will upon any other not named as executor,' and one who might have executed the power without probate, or letters testamentary; and consequently, that where such power is given to the executors, they do not exercise it in
In that case the executor to whom the power was devised, was named in the will; but in the case before ús no executors were nominated in the will, but the power is given to the executors or administrators of the testator. The distinction between that case and the one under consideration is, that in the former the donee of the power being named, upon his death his successor in the office of executor had no authority to exeeuteit; in the latter, the persons holding the office of administrators, being the persons designated by the testator to make the sale, are the ■donees of the power, and are authorized to execute it, not by virtue of their office as administrators, but by reason of such office, because thereby they answer the designation contained in the will. In the former ease the particular person having been designated to execute the power, he could have done so without probate of the will or letters testamentary, and upon his death its execution would devolve upon the Court of Chancery. In the latter ease, there was no one to take the power until probate of the will and administration granted; but when that was done, the administrators, being the persons designated by the testator, by reference to their office, and in case of their death or removal, them successors corresponding to the same designation, are authorized to sell the property and execute the trust, separately and aside from their office of administrator.
At the common law, recognized by our statute, as weE as that of New York, which is the same, a power may be created either by deed or by will. (R. S. Ch. 64, § 34; Sugden on Powers, Ch. 2, § 2.) ThewEI in this case is the power of attorney, and the letters of administration ascertain tho persons who are to execute it. The donees of the power being thus ascertained, and aE of them having joined in the conveyance several vexed questions in regard to the authority of surviving or acting executors, in relation to which the decisions are very contradictory, do not arise in this case.
In Roseboom vs. Mosher, (2 Denio, 61;) the Supreme Court of New York held, a power given by a clause in the wiE to the executor and executrix thereinafter named, and by a subsequent clause appointing
Had the lands been devised by Ladd, the testator, to his executors or administrators in trust, with a power to sell, &c., without nomin'ating executors in the will, then the question would have arisen, whether the devise would not have been void, there being no persons at the death of the testator in whom the estate could vest under the will. But it is conceived that no difficulty of this kind arises in this case. It was said by Kent, C. J., in Bergen et al. vs. Bennett, (1 Caine’s Cas., 16,) that “if a man, by his will, directs his executors to sell his land, this is but a bare authority without an interest, for the land, in the mean time,, descends to the heir at law, who, until the sale, would at common law be entitled to the profits,” &c. “But if a man devises his lands to Ms executors to be sold, then there is a power coupled with an interest, for the executors in the mean time take possession of the land and the profits.” Mr. Hill, in his valuable treatise on the law relating to trustees, remarks, that “it not unfrequently happens that a testator merely gives his trustees a poiuer of disposing of an estate, without making an express devise to them. In this case, it is clear that the trustees will not take the legal estate, although the exercise of the power may be
It may be further observed in regard to the will under consideration, that the object of the testator in creating the power to sell, was simply to carry into effect the devises to his children and grand-children. In such a case, if the power were extinguished, it is well established that equity would interpose to prevent the conveyances. “This,” says Mr. Hargrave, “ has long been the practice of our Courts of Equity, these rightly deeming the purposes for which the testator directed the money arising from the sale to be applied, to be the substantial part of the devise, and the persons named to execute the power of selling to be mere trustees, which brings the case within the general rale of equity, that a trust shall never fail of execution for want of a trustee, and that if one is wanting, the Court shall execute the office. The relief is administered by considering the land, in whatever person vested, as bound by the trust, and compelling the heir, or other person having the legal estate, to perform it.”
It must be certified to the Circuit Court for the County of Saginaw, that the objection made by the defendant to the deed of conveyance, under which the plaintiff claims title to the land in question, is not a good and valid objection, but that the said deed is a good and valid deed of conveyance under and in pursuance of the power of sale contained in the last will and testament of Herman Ladd, deceased, and the letters of administration with the will annexed granted thereon.