4 Denio 399 | N.Y. Sup. Ct. | 1847
At the common law, when executors have-a mere naked power to sell lands, they must all join in the conveyance, or the title will not pass. But under our statute, which is much like the 21 H. 8, c. 4, if any of the executors refuse or neglect to act, the sale may be made by those who take upon.themselves the execution of the will. (1 R. L. 366, § 11; 2 R. S. 109, § 55.) If the executors are not directed by the will to sell, but only have authority in their discretion to make sales, it has been held in Kentucky that the case is not within the statute, and all must join in executing the power. (Woodbridge v. Watkins, 3 Bibb, 349: Clay v. Hart, 7 Dana, 1.) The words of our statute favor that doctrine : they are, when any lands shall be “ ordered” to he sold. But if such be the rule in relation to a naked power, there is room for question whether the construction is not too narrow for a case where the power is coupled with an interest, and is given to the executors virtute officii. A power of this kind
If there be any difficulty in the case at the common law, I should agree with what was said' in Croke, that the statute
There are cases where the confidence reposed in the trustees is of such a nature that nothing can be done except in the particular way which the testator has prescribed. It is so where he has omitted to designate the particular objects of his bounty; and has left the selection to the discretion of the trustees. (Cole v. Wade, 16 Ves. 27; Walter v. Maunde, 19 id. 424; Hibbard v. Lambe, Amb. 309; Down v. Worrall, 1 Mylne & Keene, 561.) But there is nothing of that kind in this case. There is no personal confidence here beyond what is common to almost every trust. The testator has directed the executors to “ exercise a sound discretion in leasing and selling the lands;” but that is no more than the law would have enjoined as a duty, without any such direction in the will. We see no good ground for holding that this case should not fall .vithin the operation of the statute.
New trial granted.