58 Ala. 573 | Ala. | 1877
The leading, if not the sole purpose of the present suit, is to have the sale and conveyance of the house
1. The power in Cowan’s will is in the following language: “My wife is to have the power of selling or exchanging any of the property devised to her, for cash or other property, provided the power is exercised by and with the advice and consent of James L. Pugh and Dr. Sam. C. Cowan.” The will contained the following clause, anterior in position to the one copied above : “All my estate left, after the payment of my debts, I give and devise unto my beloved wife, Ann S. Cowan, to be kept together, used and managed by her as she may think proper. My unmarried children to remain with her free of charge for support and maintenance until they marry; and as each child marries, it shall receive in money or property two thousand dollars, to be advanced whenever my wife thinks she can do so, without injury or embarrassment. ’ ’
It will be observed that this will confers on testator’s wife very large discretionary powers, limited in the matter of selling or exchanging any of the property devised, by the sole condition, that it be done with the advice and consent of the two persons named. The deed is an ordinary deed of bargain and sale from Mrs. Cowan to Eamser, conveying the lots in controversy. The concluding clause is in the following language : “In witness whereof I have hereunto set my hand and affixed my seal to this conveyance, with the knowledge and consent of Dr. Satíi. Cowan and my brother, James L. Pugh, as by my husband’s will directed.” This deed was signed, sealed and delivered January 1, 1866, in the presence of two subscribing witnesses, and on it was indorsed the following: “January 19, 1866. We hereby
2. It is contended that the money derived from this sale was misapplied, and therefore the sale should be annulled. It is not necessary for us to inquire whether there was such misapplication. All knowledge of this is denied by Ramser, and there is no testimony offered to sustain the charge. One who buys in good faith from a trustee having power to sell, and pays the purchase money, is not responsible for its application, unless it be made to appear that the person making such payment colluded with the trustee, or knew of his intention to waste or mismanage the funds. — Code of 1876, § 2197. We do not say there is any evidence of misapplication in this case.
The decree of the chancellor is affirmed.