43 N.J.L. 1 | N.J. | 1881
The opinion of the court was delivered by
In pursuance of a certain article of agreement, the plaintiff in error, Anthony Weimar, tendered to Martin Fath, the defendant in error, a conveyance of a tract of land; and the single question is, whether he was clothed with the legal competency to make such instrument. In demonstration of his right, the court is referred to the will of one Metzler, who died seized of the premises in question. From an inspection of the document, it appears that the testator, after having given to his wife his personal property, and also the use of his lands, during widowhood, expressed his further will in these words, to wit: “ If at any time my executors deem it advisable to sell the landj or any part thereof, it is my will and wish that they should do so, and the moneys received from such sale to be safely intrusted or invested, and all the interests thereon received from such investment to be given to my wife, Anna Margaret, as long as she remains my widow, and at her decease or future marriage, to be divided among my children, share and share alike.”
From the bill of exceptions, the further fact is shown that although the wife of the testator proved the will, and, in conjunction with the plaintiff in error, obtained letters testamentary, she was subsequently removed from her office, and her letters revoked by a decree of the Orphans’ Court. It was subsequent to this last event, and in this posture of affairs, that the deed which is now challenged was made. That this will gave the right to the executrix and this executor, before the removal of the former, by their joint act, to execute this deed, is not in doubt; the uncertainty is, whether such right
The problem thus presented has two legal aspects ; the one in its relation to the common law; the other, in its relation to the statutory regulations existing in this state.
Looking at the subject under the first head, it would, perhaps, be too much to say that the decisions demonstrably show that the right to sell this land, on the extinction of the one executorship, was, by operation of law, transmitted to the other executor. Yet, I am inclined to think that if there was no other ground of decision, and the case was to be settled by the test of general principles, that such would be the conclusion to which we would be led. In this instance, as it is clear that no estate was vested by this devise in the executors, we have to do with the topic of the trausmissibility, or rather the survival of a naked power. And, with respect to such a competency, the general rule is, that where a power is given to two or more persons, as individuals, it will not survive without express words. Thus, if an authority were given to A and to B, nominatim, to sell designated lands, and they should also be appointed executors in the will containing this authority, if either should refuse to take the office, or should die, it has been almost uniformly adjudged that the other executor could not validly execute such power. In such expressions it has been deemed that the purpose appears to be to put a confidence in the individuals who are thus named. But the legal effect is the opposite of this when, instead of there being an express designation of individuals, there is a designation, as recipients of the authority, of a class of officers, for, in such circumstances, the power is supposed to be intended to be lodged, not in any particular individuals, but in all persons who at any time fill such office. This distinction is very ancient, and is clearly defined by Lord Coke, in his comments on the one hundred and sixty-ninth section of Littleton. Co. Litt. 113 a. And Sir Edward Sugden, in his essay on Powers, vol. I., p. 144,- in summarizing the rules of law on this subject, as he found them established by the adju
Assuming this to be the common law rule, derived from the general principles of jurisprudence, it seems plain that, by force of that rule, the power to make the conveyance resided in the plaintiff in error, after the removal of the executrix from office. In this will the power of sale is given to the executors,” and is not vested in individuals who are named; and therefore, in the language of the authorities, as the office survived the authority survived. According to the theory above explained, when the testator said tliat his executors, when they should deem it advisable, might sell, the meaning was, that such discretionary power should be exercised by a class of officers; and the remaining executor-represents that class. In such an instance, as in other like cases, the power is annexed to the office, and not to specified donees of the power.
But I also think that a careful collation and examination of the several provisions of the statutes of this state upon this subject, will conduct an inquirer to this same result. As the construction of these laws must affect past as well as future titles to real estate, the matter has received that careful consideration which its importance seemed to demand.
The provision which at present regulates this subject is the tenth section of the act concerning executors and administra
The first topic for comment arising out of this provision, in its application to the present case, is its phraseology descriptive of the classes of wills to which it applies. It embraces two kinds of wills; first, those containing a devise to the executors for the purpose of making sale; and, second, those containing a naked power of sale. In the case now pending we have to do with this latter category, and the question is whether the present testamentary clause is comprised in it. By the statutory letter, the section becomes applicable, when in the will the lands are “ ordered to be sold by the executors
Such would have been the position of the plaintiff in error if he had simply occupied the attitude before the court of a surviving executor; but he stands upon higher ground even than this, for as the executrix has been removed from office by a decree of the Orphans’ Court, there is another statute that is applicable, and which is highly favorable to his claims. I refer to the one hundred and twenty-ninth section of the Orphans’ Court act, which makes provision for the appointment of a successor of an executor who has been removed. After establishing a regulation for that purpose, the section contains this proviso: “Provided, nevertheless, that where one or more of the executors, &c., shall be removed or discharged, the office shall survive and devolve upon the others, who shall proceed with the performance of the duties thereof, and shall be entitled to the property and assets, and to sue for and receive the same, in the same manner as if such remaining executor or executors, &o., had been solely appointed to such office.” Upon the removal, then, of this executrix, the office, to use the language of this act, survived and devolved upon the plaintiff in error, and he was to proceed with, the performance of the duties thereof, in the same manner as if he had been solely appointed
And before dismissing this subject it is proper to say that almost all the authorities harmonize with the view here expressed. The statutes in several of the states are, in this
Let the judgment be reversed.