102 Mass. 268 | Mass. | 1869
The plaintiff’s claim is founded upon the assumption that a deed of the land from Nancy Swift and Lydia S. Wright to Adam C. Rider, his grantor, conveyed no valid and
The question arises upon the following state of facts: The last will and testament of Frances B. Wright, (which is very-brief, and quite inartificially drawn,) provides that Lydia S. Wright, the relict of the son of the testatrix, is to have the use of the house and furniture, “ and all that I possess,” (to quote the language of the will,) “ so long as she remains the widow of my son Henry Wright.” The will then, without in express terms saying that the house is in any event to be sold, or, if so, by whom or for what precise reason, makes the following provision : “ If it is deemed best to have the house sold, she is to have the interest for her use, with the furniture. At her decease, if her son Henry Swift Wright and Fanny Maria Wright are living, I wish them to share equally in the avails of the house and furniture.” She then names her son “ John B. Wright and Miss Nancy Swift ” as executors of her said last will and testament. John B. Wright having died, the will was proved, and Nancy Swift was appointed sole executrix. Afterwards, namely, January 2, 1866, Nancy Swift and Lydia S. Wright joined in a deed of the premises to the plaintiff’s grantor; the deed reciting that Nancy Swift, “ executrix of the last will and testament of Frances B. Wright, by virtue of a power contained in and conferred by said will,” and in consideration of $1067, &c., gives, grants, sells and conveys the premises; and that Lydia S. Wright, “ to whom was devised the use of the premises so long as she should remain the widow of Henry Wright, agreeing with the said Nancy Swift, executrix, in deeming it best to have said land and the house thereon sold,” remised, released and forever quitclaimed the premises to said Rider, &c. The said Rider afterwards gave a deed of general warranty, purporting to convey the house and land to the plaintiff.
In the case at bar, the will does not say in terms by whom the power of sale is to be executed. The only limit upon the discretion with which the power is to be exercised is contained in the words “if it shall be thought best.” We think that these words can only mean that the house shall be sold, if in the course of the administration of the estate it should be found necessary or advisable to take that course. It is also very plain that the proceeds of the sale are to be put upon interest by somebody, and not to be finally distributed till after the décease of Lydia S. Wright. Until her decease, she is to have the interest of that fund; and after her decease, the avails of the house and furniture are to be divided between the two children. These circumstances certainly furnish a strong implication that the trust and duty of retaining and investing the proceeds, paying the interest of it to her during her life, and then dividing the avails of the real estate and of the personal estate also between the ultimate beneficiaries, are incident to the administration of the estate under the will; and if so, the executors, as having the distribution, would also have the authority provided for by the terms of the will. The authorities are-explicit to the point that such is a reasonable construction of a will which creates the power without saying in terms by whom it is to be exercised. Davoue v. Fanning, 2 Johns. Ch. 252.
We must construe it, therefore, as a power to the executors,1 as such, in their official capacity, and viriwte officii, and not to them as individuals, or as matter of mere personal and individual trust. It is also a power coupled with a trust, and not a. mere naked power. Its exercise is necessary (if it should be found expedient to make the sale) to the administration of the will according to the intent of the testator. At the time of the sale to Rider, Nancy Swift was sole executrix, and, according to the authorities, the power, being wholly ratione officii, survived to her with the office itself. Warden v. Richards, 11 Gray 277. Jackson v. Ferris, 15 Johns. 346. Zebach v. Smith, 3 Binn. 69. Exceptions overruled.