18 Pa. 179 | Pa. | 1851
The opinion of the Court, was delivered by
It is said by Mr. Jarman, and perhaps every other text-writer on wills, that a devise is a species of conveyance; and that for this reason it is, that after purchased land would not pass by it at the common law; consequently a trust of land created by will is of the same stamp as a trust created by deed. The executors of this will took, not merely a naked power to sell, but the legal title to the land, and on very special trusts. “ I give, devise, and bequeath,” says the testator, “ unto my executors hereinafter named, all and singular the rest and residue of my estate, real and personal, upon the trusts, and for the purposes, hereinafter named.” He then declares the trusts ; and, exmajori cautela, gives the survivor or survivors of the trustees power to convey.
The transfer of real property is governed by the lex loci rei sitse; and no statute of Pennsylvania empowers an administrator with the will annexed, to execute a trust of land confided to an executor by title or by name, for any other purpose than to sell for payment of debts. By force of the Act of the 24th of February, 1834, relating to executors and administrators, he may execute a power to sell in order to bring the land into a course of administration, but not to execute a trust for a collateral purpose; for instance, to manage the property and invest the proceeds for accumulation; or to maintain the widow and children; or to turn the land into money for the convenience of partition; or to exercise any discretionary power confided to his predecessor in the administration for his personal fitness and fidelity. For purposes purely administrative, the thirteenth and fourteenth sections give the devise of a power the effect of a devise of the title, and the
How could the administrator in Pennsylvania, execute the trusts under this will in New York? The trustees of the entire estate were directed to continue for a time the partnership of the testator with his sons, and, after the dissolution of it, to invest the estate for accumulation till the death of the widow, and then divide it among the children. If the administrator were a trustee for any purpose, he would be a trustee for every purpose; and it would be difficult to determine whether he should act in the execution of the trust separately or conjointly. It would be a strange sort of trust that would admit of such participation. If he could not act as a trustee at all, what would become of the money in his hands ? As there were rto debts to be paid, remit it to the executors at the place of the domicil. What! to persons who having renounced the administration of it, had parted with their title to receive it, and had no power to give an acquittance for it ? That could not be.
A trustee who accepts cannot renounce. It is unnecessary to
Judgment reversed.