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following the mention of his name. It was also left to his judgment what parcel to sell, but a sale was imperative. The court rely upon the authority of Coke, that a power given to “ executors" to sell may be executed even though one dies, “because the plural number remaine;” but otherwise, if it had been given to “I. S., I. N., &c., his executors," " because the words of the testator will not be satisfied ;” and also refer with approval to the distinctions laid down by Mr. Sugden:2 (1) that a power to two or more nominatim will not survive without express words; (2) where it is given not nominatim, but to two or more generally, it will survive while the plural number remains; (3) where it is given to “ executors” merely, even a single executor may execute it; but (4) if to executors by name, it is at least doubtful if it will survive.
It will be perceived that these authorities were not expressly upon the point in issue in the principal case. They applied, however, to the general question of the transmission or survivorship of powers, and were considered decisive of the incapacity of the power in question to survive, because it was considered a bare discretionary power. But the court also place their decision on a second ground, derivative though distinct from the first, namely, that the administrator cannot succeed to powers as to realty reposed in the executor; relying upon the authority of Wills v. Cowper 3 and Conklin v. Egerton,4 and of a case in the Year Books.
To take in their order the two grounds herein relied upon, and which broadly present the two leading questions arising in reference to testamentary powers, it is apparent that the first goes upon the principle that where a testator has confided a power it must be exercised by, and only by, the person or persons selected; and the second, upon the collateral ground that an administrator, though clothed with the representative capacity, is not in the confidence of the testator, and cannot act as the testator's grantee, unless expressly named.
In regard to the first of these positions, to which the court in their judgment suggest no exception or modification directly, we must refer to the rules cited from Lord Coke and Mr. Sugden, to see what qualifications the court are disposed to admit. Now it is evident that in neither of these are any further departures from i Co. Litt. 112 b, 113 a.
2 Sugd. Pow. (1st ed.) 165. 3 2 Ham. 134.
4 21 Wend. 430.
the testator's literal directions approved of, except in two cases, one of which is suggested by both these authorities, the latter only by Mr. Sugden. The first is, that where the power is limited to be exercised by executors generally, it may be executed while a plural number remains; and the second is Mr. Sugden's extension of this, to allow even one executor to sell where the power was merely given ratione officii, not nominatim.
It is, of course, to be borne in mind that the case above stated, as well as the rules just referred to, related only to what were viewed — whether correctly or not, we shall inquire further on
-- as mere powers. The distinction, which we maintain was not properly kept in view in these authorities, was that between a bare power and a power coupled with a trust. A bare power is necessarily a discretionary one, and precisely to the extent to which it is a power merely, must be limited to the donee or donees, and cannot in any way be transferred or pass to any other person. It may be either a legal or an equitable power. But the distinction between these two classes is foreign to the point under consideration ; for an equitable power may be one that equity will interfere to compel the exercise of, and so take it from the domain of the donee's discretion, and replace that by the discretion of the court of equity. But equity will do this only on the ground that, and to the extent to which, there is an interest vested in some person in the execution of the power, and which equity is bound to enforce ; in other words, that the power is coupled with a trust.
This is the first distinction which is to be maintained in order to a correct view of the position of the authorities on this subject; and it will be seen, therefore, that our whole inquiry to ascertain the survivorship or not of any power resolves itself into the question whether the power is wholly discretional throughout, or whether any part of it is compulsory, because a third person has an interest in its exercise, not dependent for its existence on the discretion of the donee of the power.
A second distinction, quite diverse in its nature from the one just commented on, is between bare powers and powers coupled with an interest. The latter phrase is often broadly employed to include every case where an interest is to vest by the exercise of the power. It is conceived that this is incorrect, and that the true meaning is, that an interest vests in the donees of the power, which is to be enlarged by the exercise of the power, or out of which the power is to take effect, as in case of a power of sale attached to a mortgage.1
The cases which turn on this latter distinction rest on a very different principle from those of the first class. The limitation of an interest, whether legal or equitable in its nature with a power appended, enables the grantee to deal with the power as he does with the estate; and if the latter is capable of being assigned, the power will also pass to the assignees, even without words of limitation to them in the original grant of the power. If such words are inserted, then the power can be exercised without the intervention of a court of equity; and if not, then at least with such intervention.
It is, however, evident, from an examination of the early cases, especially those .of or anterior to the time of Lord Coke, that the full conception of the distinction first stated did not then exist in any proper sense, and that the only distinction established or even recognized was the second one, i. e., between bare powers and powers coupled with an interest. With the then partially developed jurisdiction of the court of equity, the existence of a duty in the nature of a trust underlying a power was not recognized as a ground for equitable interference. The settled distinction was, that if an estate was devised to several executors or trustees in trust to sell, here the power would survive as coupled with an interest; but if devised in trust that the executors, &c., should sell, then it would not survive. Thus, in Atwaters v. Birt, on a feoffment to four to uses, there was a proviso that the uses should cease on (inter alia) the assent of the feoffees. One of the feoffees dying, the donor, with the assent of the other three feoffees, revoked the uses; but it was held void, Popham, C. J., saying, that“ before the Statute of 21 Hen. 8, c. 4, the common law was, that if one devised his land to four to sell, and one of them dies, the survivors, because they have an interest, may sell ; but if he had devised that three should sell the land, and one of them dies, the survivors, because they have but a mere authority, cannot sell.” As authority, an anonymous case, some forty years earlier, is referred to. Here, after a devise by a cestui que use that A., B. and C., the feoffees to uses, should sell to pay legacies, &c., A., 1 Hind v. Poole, 1 K. & J. 883.
2 Lewin, Trusts, 430 et seq. 3 Cro. Eliz. 856.
4 Dyer, 177.
one of the feoffees, died. It was questioned whether B. and C. could sell ; " and it seemed not, and so it was ruled; but quære, if they had not been named A., B., and C., but feoffees only.” So in the case of Butler v. May, on a devise to the use of such wife as the testator's son should marry, upon the nomination of four persons named, and one of these four subsequently died, it was held that the uses failed, because the power of nomination could not be executed by the survivors. Dyer and Browne, JJ., dissented, because they thought that the donees had by the grant an interest in the marriage as a feudal incident.
Where a power was not coupled with an interest, it seems, therefore, at this time merely regarded as a bare power or authority; and the only two cases in which others than the first donees. of the power could exercise it were where, by the general terms in which they were described, it might be considered as not restricted to the individuals named, but to pass to two, or even a single survivor; or, secondly, where there was no one named as donee of the power, that even a single survivor might execute it.
Thus, under this latter exception, in a case in 2 Leon. 220, where a man devised lands to his wife for her life, and directed that after her death the lands should be sold and the proceeds paid out to his next of kin, and made two executors, who both proved the will, after which one died; it was held that no one being named to execute the power, it went to the executors virtute officii, and the survivor might sell; and similar decisions were made in many other cases.
Yet though this rule obtained where no one was named to take the power, it was adjudged from even an earlier period that where the testator directed his lands to be sold by his executors, if one or more resigned, the accepting or qualifying executors alone could not sell, because the executors were in the nature of grantees, and must all act notwithstanding their resignation, as “ a will of lands is not a testamentary matter; ” 2 and in like manner the power of a survivor to sell seemed to be limited to the case where the co-executor had deceased prior to the vesting of the power. The case of Bonifant v. Greenfield,4 cited by the court in a recent case in this state 5 to show that a power could be exe
1 Dyer, 189, 190. 4 Cro. Car. 80.
2 15 Hen. 7, 11.
8 Co. Litt. 113 a. 5 Gould v. Mather, 104 Mass. 283, 290.
cuted by the continuing executors, was not the case of a bare power, but was a devise to executors to sell, which, as we have before intimated, was regarded as giving a power coupled with an interest which, as a joint estate, could well survive.
To enable the continuing executors to exercise such a bare power, the Statute of 21 Hen. 8, c. 4, was passed, which authorized even a single qualifying executor to sell, but made no mention of the case of survivorship upon decease. The law upon this point seems to have been at that time that where the donees of a power not coupled with an interest were mentioned nominatim, the power could not survive; where, on the contrary, they were referred to generally, it would, at least while a plural number continued, and in some cases even to a single survivor. Thus, in the anonymous case above referred to, reported by Dyer, it seemed that if the donees were described as “feoffees,” their survivor could well sell. So in Lee v. Vincent, on a derise that testator's 6 sops-in-law” should sell, a sale by the survivors after one had deceased was held good : “it was adjudged a good sale, because he named them not by their proper names.” So Perkins 3 lays down the law that one executor may sell where the will is that the executors shall sell and one refuses to intermeddle; and in the later case of Houell v. Barnes,+ one executor, the survivor of two, was allowed to execute a power of sale. The case of Danne v. Annas ó is sometimes referred to as an authority to the contrary ;6 but this is an error, and it will be found on examination to turn on quite a different ground. The case was à devise that executors, of whom there were two, should sell with the assent of A. B. A. B. and one executor died, and a sale was then made, and held not good. But no reason is given by the court; and it was the well-settled rule that such assent as was here required was a prerequisite or condition precedent to the exercise of the power, and even the decease of one of those named to give such assent would defeat the power.?
Yet it is quite apparent, as we have said, from all the cases at this time, even those upholding the right of a single surviving executor to exercise a power not coupled with an interest, that
5 Dyer, 219 a.
1 Dyer, 177.
2 Cro. Eliz. 26. 3 $ 545.
4 Cro. Car. 382. 6 Per curiam, in Chandler v. Rider, 102 Mass. 268, 270. 7 Atwaters v. Birt, Cro. Eliz. 856.