14 Johns. 527 | Court for the Trial of Impeachments and Correction of Errors | 1817
The conclusion to which I have arrived, on a careful examination of this case, renders it unnecessary for me to notice all the questions that were raised and discussed on the argument. I shall confine myself to that which relates to the authority of Mary Osgood, alone, as sole surviving executrix of Walter Franklin, deceased, to sell and convey the lands in question to Clinton and Not ton. The decision of this point depends upon the construction to be given to that clause in the will of Walter Franklin, under which the authority to sell is claimed.
The testator, after sundry specific devises and bequests, gives the whole residue of his estate to his wife, his two daughters, three brothers, and two sisters, each one eighth ; and appoints his wife, and three brothers, executors. Then comes the following clause: ‘‘I give to my executors that may act, and to the major part of them,, their heirs or executors, full power to sell any or all my real estate not already devised,’’ Sec. The plain and obvious meaning of this power, as well as the grammatical construction to be given to the words is, that the authority to sell is given, in the first place, to all the acting executors, and for the purpose of preventing any one of them from defeating a sale, he declares that a major part of them may sell. Still further, to uphold the power, and guard the sale, and prevent an improvident disposition of his property, he provides that in case of the death of any of his acting executors, their heirs or ea> ecutors shall be substituted as trustees in their places. No other interpretation, in my judgment, can be given to this power, without rejecting some words altogether, and rendering others useless, and without meaning. If so, Mrs. Osgood alone had no power to sell. On the death of the testator, Walter Frank
It is an incontrovertible rule, running through all the cases, on the construction of wills, that the intention of the testator is much regarded, and ought to have a controling influence in construing these powers; and that a greater or less latitude is given to them, for the purpose of carrying into execution such intention. This rule is noticed and recognized by the chancellor, in his opinion in this case. We find in the books great subtlety in many of the distinctions that have been attempted to be made, between what is called a naked power or authority, and a power coupled with an interest or trust. It is admitted, • &s a general rule, that with respect to the former, it must be executed by all to whom it is delegated. But where the authority is connected with an interest or trust, and is delegated to several, it does not become extinct by the death of one or more, as long as there is any one remaining to execute the power. It then devolves upon the survivor; unless the testator, or person from whom the power emanates, has provided for the event of the death of one or more of the executors or trustees, and has appointed a substitute in their place; in such casé the substitute becomes vested with all the power and authority of the first trustee; and the case before us is one of this description. On the death of Samuel and John Franklin, their heirs or executors are, by the express terms of the will, to be substituted in their place, and entrusted with the execution of this power, and ought to have united with Mrs. Osgood, in order to pass a valid title.
According to my view, therefore, of the authority to sell, given by this will, it will not be, necessary for me to enter into an examination of the nice and refined distinctions between naked powers, and powers coupled with an interest. For, beyond all question, it was a matter resting altogether with the testator, to limit and guard this power, in such manner as jhe thought proper; and if not only the necessary construction of the words which he has used, but his plain and obvious mean-
In the cases, generally, in the books where this question is examined, we find the power given to the executors, without any provision for the event of their death. The reason why the power is held to survive, is, to prevent the failure of the trust for the want of a trustee. But no such failure could occur here, because the testator has expressly designated the persons who may execute the trust, on the death of those first named. • Had he barely gives to his" executors a power to sell, and accompanied such power with a trust, the law might cast that power upon the survivor, to prevent its becoming extinct, and the trust failing. But the testator had a right to control this legal effect, by an express appointment, by himself, of a trustee; and this he has done, by substituting the heirs or executors of the first trustees. The objection, that this would produce incongruity and confusion, is no satisfactory answer. If the meaning of the testator was left doubtful, we might have
Under such circumstances, there was a peculiar fitness in the-testator’s giving the direction to this power which he has done. As the four executors named in the will were entitled to one half of the property on which the power could operate, they were very much interested in the due execution of it, if it was at all to be executed. It was, therefore, proper that their judgment, or that of the major part of them, should be exercised as to the sale, and if they should die without executing the power, or disposing of the property, it was very reasonable that the authority should accompany the estate when it went into the hands of their representatives. As to one half of the land, it was a mere question of judgment with the executors, whether, or not, to sell their own property. There were no debts or legacies to be paid, and no necessity for selling. The testator, therefore, left it in their discretion, whether to sell, or not, as-they should judge most for the benefit of the estate; and the two acting executors not having, for twenty-seven years, thought proper to sell, the inference is irresistible, that in their judgment no sale ought to be made. To ratify and confirm a sale made by one, would not only be directly repugnant to the words of the will, but would be depriving others, who were interested in the lands, of the guards and checks wisely provided by the testator against an improvident sale. If the testator had intend
Had Samuel and John Franklin been living, no one will pretend, that the deed of Mrs. Osgood would have been valid $ and, why should it be when those whom the testator has substituted in their place are living? If it was not intended by the testator, that, in case pf the death of all or any of his acting executors, their heirs or executors should be the substitutes charged with the trust, why were they all named ? No possible reason can be assigned for it.
It ought to be kept in mind, that the executors are not ordered or required to sell, but are barely authorized so to do. The legal estate, whether vested in the devisees, or in the heirs at law, was subject to be devested by a sale, if in the judgment of the major part of the acting executors, it should be thought most for the general benefit of the estate ; nor can it alter the construction of this power, if the legal estate should be deemed to be vested in the executors. So far as the executors were charged with any trust in the management and disposition of the estate, it was the same, whether the land remained unsold' or was converted into money. It was to be applied to the benefit of the same eight residuary devisees, of whom the executors themselves were four. If, then, the intention of the testator, collected either from the words he has used, or from the general scope and object of the will, is to govern in the construction of the power, it appears to me very obvious, that such intention has not been pursued. When he has limited the exercise of this power to a major part of his acting executors, and in case of their death, substituted in their
I have not deemed it necessary to go into an examination of .the question, whether this is a power coupled with an interest or trust, and would have survived to Mrs. Osgood, if the testator had not himself expressly provided for the event of the death of one or more of his acting executors; because I am persuaded, it is perfectly immaterial whether it be a power coupled • with an interest : trust, or a mere naked power. If there are
The broad and enlarged principles which govern courts of equity on the subject of Trusts, are amply sufficient to enable us to do justice to all parties, without confirming this sale, in its full extent. Mrs. Osgood was the owner, in her own right, of one eighth of the residuary estate sold by her; and so far, the deed to Clinton and Norton may be considered valid. We have before us all the parties in interest. Mr. and Mrs, Osgood, in their answer, admit that they had received the twenty-five thousand dollars from Clinton and Norton, and the object of their bill was to obtain a decree of the court of chancery, to protect them in the distribution of the trust fund among those entitled to it, under the will of Waller Franklin. Seven eighths of this fund may be decreed to be repaid to Clinton and Norton; and, for the purpose of protecting the purchasers under Clinton and Norton, all sales made by them may be confirmed, and conveyances directed to be given by proper parties; and Clinton and Norton be decreed to account to their co-cestuy que trusts for their distributive shares of the proceeds of such sales.
I am, accordingly, of opinion, that the decree of the court of chancery, so far as it confirms the sale to Clinton and Norton, ought to be reversed; and a decree entered conformably to the principles I have mentioned.
Bates, Cochran, Hascall, Hart, Prendergast, Ross, Stranahan, Stewart, Tibbits, and Van Vechten, Senators, concurred in the opinion delivered by Mr. Justice Platt.
A majority of the court
Decree of affirmance.
The court made the following General Rule :
it is ordered, that hereafter, it shall be the duty of the appellant or plaintiff in error in this court, to deliver a copy of the opinion of the chancellor or supreme court, to each member, as an Appendix to his case, previous to the argument thereof, except where such opinion has been previously published by the. reporter.
April 8th j for1 affirming, 13 4 for reversing, 7=
I1 v-h m a. 1 2 Uit'