Parker v. Sears

| Mass. | May 8, 1875

Wells, J.

We are of opinion that the power of sale, given by Frances G. Fessenden, as contained in the indenture of settlement, was rightfully exercised by the two surviving trustees.

First. It was appendant to the legal estate, which vested in the trustees in strict joint tenancy. Hill on Trustees, 471, 473.

Second. It was given to the trustees as an incident of the trust and a means for its administration according to the purpose of the settler. Richardson v. Morey, 18 Pick. 181, 187. Gibbs v. Marsh, 2 Met. 243. Warden v. Richards, 11 Gray, 277. Treadwell v. Cordis, 5 Gray, 341.

Third. It was conferred upon them as trustees, and not personally, nominatim. 1 Sugd. Powers, (7th ed.) 146. Chandler v. Rider, 102 Mass. 268" court="Mass." date_filed="1869-09-15" href="https://app.midpage.ai/document/chandler-v-rider-6415768?utm_source=webapp" opinion_id="6415768">102 Mass. 268. Gould v. Mather, 104 Mass. 283" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/gould-v-mather-6416056?utm_source=webapp" opinion_id="6416056">104 Mass. 283.

The expression “ said trustees ” is sometimes regarded as having a restrictive significance. It is true it relates back to the clause in which three persons are named; but they are named only as grantees of an estate expressly limited to them and their assigns, “ and to the survivors and survivor of them, his heirs and assigns.”

That the power is annexed to the office, and not to the persons, is manifest also from the subsequent clause which provides for supplying vacancies, and confers the same powers upon the substituted trustees. Indeed the only difficulty comes from this direction; to wit, from the question whether the power of sale is not suspended until the vacancy shall have been filled.

Upon careful consideration of the whole indenture we are satisfied that no such suspension of this power was intended. The subsequent clause does indeed provide for the continuation of the trust by succession ; and to that extent enables the limitations of the preceding clauses to be defeated or modified. But this could only be done, during the life of the settler, by the settler herself, and after her decease, by the remaining trustees. Until this right should be exercised, the whole title, with all its incidents, remained with the original trustees or their survivors. This clause itself requires a conveyance from them in order to invest the new trustee with the powers and duties belonging to the trust. There is nothing in the instrument to indicate an intent that any of the powers or duties confided to the trustees should not, in the mean time, be executed by those upon whom they would be cast; nor is there anything in the nature of the case to show that it would be inconsistent with any purpose for which the trust was created. The power of sale might not be necessary to the maintenance and proper administration of the trust. But its exercise does not depend upon necessity. It is conferred in terms which may make its exercise a duty, and which charge the duty upon the trustees named, and their survivors or survivor, unless they are relieved thereof by force of the subsequent provision.

The suggestion that the settler may have desired to secure the judgment of three independent individuals upon the expediency of a sale has but little weight in this case, because she provided that no sale should be made during her life without her own consent, “ testified by her joining in such conveyance ; ” and after her decease the appointment of any one to fill a vacancy was confided exclusively to the control of the remaining trustees.

We are also of opinion that the power of sale, contained in the will of John B. Fessenden, was rightfully exercised by the trustees, to whom one undivided third of this estate was devised with full power and authority to sell and convey. The only question raised in regard to it is whether the trustees could legally execute the power without first receiving an appointment or letter of trust from the Probate Court. The authority of the Probate Court cannot add to or aid a power given by will, and is not necessary to its exercise. It cannot prevent or promote the transmission and vesting of the title of estates devised in trust, in those who are named trustees in the will. The statutes require that every trustee, not exempted therefrom, “ shall, before entering on the duties of his trust, give bond ” to the judge of the Probate Court. Gen. Sts. c. 100, § 1. But these trustees were exempt by reason of the request of the testator that they be “ exonerated and excused ” from giving bonds. Gen. Sts. c. 100, § 2. When trustees are required to give bond, as all trustees under a will are now, St. 1873, c. 122, it is proper that they should obtain a letter of trust to certify their compliance with the requisitions of law in that behalf. But their authority to exercise the power and convey the estate is derived exclusively from the will. Tainter v. Clark, 13 Met. 220, 227. National Webster Bank v. Eldridge, 115 Mass. 424" court="Mass." date_filed="1874-09-04" href="https://app.midpage.ai/document/national-webster-bank-v-eldridge-6417740?utm_source=webapp" opinion_id="6417740">115 Mass. 424.

Upon neither of the grounds of objection to the title, offered to be conveyed, do we regard it as so far subject to doubt of its validity as to justify the defendant in rejecting, or the court in declining to require him to accept, the conveyance.

Decree for the plaintiffs.