74 Ala. 254 | Ala. | 1883
— This was a statutory real action for the recovery of possession of a house and lot situated in the city of Huntsville, in which the appellant was plaintiff, and the appellee defendant. The appellant claimed title-from a sale and conveyance made to him by John O. Robinson, as executor of the last will and testament of James B. Robinson, deceased, without the order or decree authorizing it, of any court having jurisdiction. The will of said James B. bears date June 16th, 1876, and after his death was duly admitted to probate, on the 2d day of December, 1877. By the first item or clause thereof, specific devises of real estate and bequests of personal property are made to his widow. By the second item, the rest and resi
The case has been argued by counsel, and we shall so consider it, as presenting no other question than whether the executor qualifying could alone execute the power to sell lands,, which is conferred by the fourth item of the testator’s will upon the executrix and executors thereinafter nominated and appointed. •
1. It is clear that, at common law, a naked power given to persons named as executors, to sell lands, or to do any other act, would not survive; nor could it be executed, unless the persons upon whom it was conferred joined in the execution. But, if there was a power of sale, coupled with an interest, the power was capable of execution by surviving executors, or by such of them as qualified. Or, if there was a power of sale given to executors, “qua executors, and not nominatvm,” and the will did not expressly point to a joint execution, the power could rightfully be exercised by such as qualified, or by the surviving executors. Or, if there was a devise of lands to executors by name, with directions to sell, the descent to the heir was interrupted, and the freehold passed to the donee, coupling an interest with the power; and it was capable of execution by surviving executors, or by such as accepted the executorial duties and trusts. But a mere devise that executors should sell lands did not interrupt the descent to the heir,
2. To obviate inconveniences which were found to result from the strict rules of the common law on this subject, was the purpose of the statute, which declares that, where a naked power is by will given to executors, the survivor of them, or such as may qualify, or an administrator with the will annexed, may execute the power. — Code of 1876, § 2218. The statute, by its terms, is confined in operation to two classes of cases; the first is a devise of lands to the executors, with directions to sell; and the other is to a naked power of sale. In determining whether a power is a naked power, incapable of any other than a joint Execution, or whether it may be executed by surviving executors, or by the executors qualifying, the intention of the testator, as it may be collected from the terms of the will, must control. In reference to that intent, the power is construed with greater or less latitude. — Franklin v. Osgood, 2 Johns. Ch. 1.
3. Looking at the whole will, the purposes for which the power of sale is conferred, the form and language in which it is expressed, the conclusion that the testator intended a discretionary power, in the exercise of which there should be the concurrence of the executrix and executors, seems irresistible. Thére is not an absolute and unqualified devise that there shall be a sale of the land. The sale is to be made only in the event it is “ found necessary in order to effect an equitable division.” And it is to be made publicly or privately, “ upon such terms as my executrix and executors may deem most advantageous to the devisees and legatees thereof.” Whether a necessity for a sale existed, it is manifest, is dependent upon the judgment and discretion of the' executrix and executors— upon their ascertainment and determination of the fact, whether without it an equitable division could be effected amongst the legatees and devisees. And if it shall be determined that there shall be a sale, the terms, of sale, and whether it shall be made publicly or privately, is committed to their judgment and discretion. If the sale is upon credit, a lien upon the lands for the payment of the purchase-money is to be reserved ; and when the purchase-money is paid in full, the land is “ to be conveyed to the purchaser by my executrix and executors, or such of them as may be in office as such.” Thus, the testator distinguished between the sale and the conveyance of the lands. The sale is to be made by all — by the executrix and executors; but the conveyance may be executed by such of
The rule is clear and indisputable, that when a power to sell lands, or to do any other act, is conferred upon two or more persons, whether by name, or as executors, and it is dependent upon their judgment or discretion whether the act shall be done or not, the power conferred is a special trust or confidence; its exercise is a matter for the judgment or discretion of all, and without the concurrence of all the power cannot be exercised. Woolridge v. Watkins, 3 Bibb, 349; Tarver v. Haines, 55 Ala. 502.
It is not difficult to conceive that the testator was willing to repose in the executrix, his wife, the executors, his son and his son-in-law, the power to determine whether a sale of lands was necessary to effect a division amongst his devisees, the mode and terms of sale, and yet unwilling to intrust so great a power to either of them solely. Their joint and concurring judgment and discretion he- may have deemed the best assurknce that the power would be justly and wisely exercised, and exercised only in the contingency expressed. That lie contemplated the sale should be the joint act, the concurrence of the judgment of all, is apparent, when the last clause of the item of the will conferring the power is read, which distinguishes between the sale and the conveyance, expressly authorizing such of the executors as were in office to make the conveyance, and not conferring power upon them to make the sale. Taking this to be the true construction of the will, the sale by the acting executor was unauthorized and void, conferring no title upon the appellant.
The judgment is affirmed.