124 Ala. 379 | Ala. | 1899
— The authority to carry on a business in AAdiich a decedent Avas engaged at the time of his death does not pass to his executor or administrator by laAv. Foxworth v. White, 72 Ala. 224; Steele v. Knox, 10 Ala. 608. The poAver to do so may be given by Avill but it should be unmistakably expressed. — 11 Am. & Eng. Ency. Law, 973; Kirkman v. Booth, 11 Beav. 273; Burwell v. Cawood, 2 Howard, 560.
If the appellee had authority in his trust capacity to carry on the mercantile business in Avhich his testatrix Avas engaged, it must be found in the third item of the will AAdiich is as íoIIoaa-s: “I hereby nominate and appoint my husband Leopold Manassas, executor and trustee, to perform the trust of this will, and I bequeath to him all of my estate of every nature and description of AAdiich I shall die seized and possessed, or to Avhich I shall be entitled to at the time of my death, in trust however for my tAvo sons, that he shall dispose of the same, to the folloAving uses and purposes. And I hereby authorize and empower him if in the performance of his trust it becomes in his judgment necessary or expedient to sell at public or private sale in such manner as he shall deem best for the interest of my said two sons, any part or all of the estate Avhich shall come to his hands and to iirvest and to reinvest the proceeds at his discretion. And he is to furnish and expend annually proper amounts for the maintenance and education of my two sons, and AAdien they arrive at the age of twenty-one to divide the remainder of my said estate in his hands, after paying my debts, and paying for education and maintenance of my said two sons, between my said two sons, Jacob L. Manasses and August Manasses equally.”
Here is created a trust the main object of which is the maintenance and education of the testatrix’s two sons and the division between them of the property upon their attainment of the age of twenty-one years. The poAver to sell property and to reinvest is to be exercised only in the event that it should in the trustee’s judg
The continuance of the mercantile business is nowhere mentioned in the will. Such a business it is true involves the- s lie of góods and the reinvestment, in other goods, but it also involves obligations, expenditures, and a degree of attention beyond mere selling and reinvesting. Debts incurred in an authorized business of a trustee may become chargeable against the trust estate and so endanger its existence. No intention to subject the estate to the uncertain results of a mencantile business is either expressed or implied in this will. The goods in controversy were in no part those, left by the decedent, she having died about five years before their acquisition.
Being without authority to carry on the business under the will the appellant was without .capacity as trustee or executor.to purchase the goods for that purpose. The contract for their purchase bound him only personally and the title thereby acquired vested in him individually. — Malone v. Kelly, 54 Ala. 532; Liddell v. Miller, 86 Ala. 343.
There ivas error in giving the charge requested by the appellee and in refusing that asked by the appellant. What we have said of appellee’s powers under the will, doubtless will determine the result of another trial and it is unnecessary to notice the assignments of error relating to evidence.
Neversed and remanded.