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the first distinction stated in this paper, namely, between bare powers and powers coupled with a trust, was hardly taken into consideration, and that whatever duty attached to the disposition of the proceeds of the sale, or whatever purpose the testator contemplated should be accomplished with them, no trust was considered to attach to compel or authorize the execution of the power, or enable it to survive, but it fell with the decease or incapacity of any one of those to whose exclusive discretion, by a strict literal construction, it was held to have been confided. Qui hceret in litera hceret in cortice.
It is true that, in the case above cited from Leonard's reports,1 the court say that the sale, under the power, was good, "for the moneys coming of the sale are to be distributed by the executors as legacies, and it appertains to the executors to pay the legacies, and therefore they shall sell." But this language was used, not as a reason why the power survived, but as a reason why the executors should have the power at all, and it survived under the same principle as was enforced in Houell v. Barnes.
We have gone somewhat into detail in discussing the older authorities, because, apart from their intrinsic value from their age, they are generally referred to in support of the rules regulating powers, as enunciated by court and text writers since.
As a consequence of disregarding the substantial intention of the testator as to the disposition of the avails of the sale, in a blind literal adherence to the confidence supposed to be had in the persons named as donees of the power, the courts were driven to great nicety and inevitable conflict in determining when the power was general and when such confidence was expressed. It is, perhaps, unnecessary to recur to the cases in detail, for their number is so great as to make a complete examination of them altogether beyond our limits of space.2 It may be sufficient to refer, as an illustration, to Mr. Sugden's fourth rule, above cited,3 where it is left quite doubtful whether a power given to executors, but by their proper names though as executors, would survive the death of one.
Thus, suppose the ordinary case that a testator appoints A., B., and C. his executors, bequeaths divers pecuniary legacies, and then says, I direct my said executors to sell whatever land may
be necessary for the payment of said legacies; this, according to Mr. Sugden's rule, would be a case where a nominatim power was conferred, and the right to its exercise would be defeated by the death of A. For it is considered as much a nominatim appointment of the donees of the power to couple their names with the gift of the power by the word " said," as if they were named in the gift of the power. But if, on the other hand, after or before a similar appointment of executors, the clause giving the power had run simply, to "my executors," here the power would survive, being given generally.
It is, moreover, apparent, from the tenor of the rules laid down by Mr. Sugden, and by the approval of them by the court in Tainter v. Clark, that a distinction is drawn between executors and other persons in a fiduciary position, and the capacity of a power given to the latter to survive to a single person seems to be denied. Stress is laid on the so-called " office" of the executor, as if those who occupied this position had something of a quasi corporate nature, which did not extend to trustees generally. And this view is confirmed by the language of the text-books. In a recent able treatise on real estate,1 it is said: "Where the power is to several persons having a trust capacity, or an office in its nature like that of the executors of a will, susceptible of survivorship, and any of them die, the power will survive, unless it is given to them nominatim, as to A. B. and C. D., naming them. In the latter case, the power would not survive unless it was coupled .with an interest in the donees of the power." It will be observed here that the only distinction suggested in this passage is that already referred to, between powers coupled with an interest and bare powers, and that the latter cannot survive even if given to executors, if these are mentioned by name. But it is further inferrible from the author's language that, if there is no interest to which the power is annexed, it is necessary to survivorship that the donees should hold an office like that of executors; and the case of Tainter v. Clark, and Sugden's rule, before cited, are expressly referred to and relied upon.
It is, however, difficult to see any force in this distinction between executors and other trustees or persons in a fiduciary capacity. It is true that executors are commonly said to have
an office; but the source from which they derive their official capacity, namely, the Probate Court, is precisely that which can give them no capacity to take by survivorship discretionary powers conferred by will. Exactly.in so far as they have an office they are the creatures of the Probate Court. But it is from the testator only that they receive the power or discretion; and in this respect they do in no whit differ from any other trustees. All are equally grantees from the testator, and grantees only. Their relation to the land upon which the power is to be exercised is like that of grantees inter vivos, excepting only that the death of the donor does not revoke their power, but is the point at which it is established. This is clear from the earliest authorities, which distinguished between the testamentary functions of an executor and his duties as a grantee; holding the former capable of passing to an administrator de bonis non, but the latter not even divested by the executor's renunciation of his office, as this was intended by the court to apply only to his testamentary duties strictly. Thus, in the case already referred to,1 it was laid down "that if a man makes a will that his executors shall alien his lands, there, if the executors renounce administration of his goods, yet they may alien the land, for the will of the land is not a testamentary matter." Nor can it be said that this case applies only to absolute devises of land, for here there was no devise of the land, but only of a power. We shall, indeed, urge later that in this case such a power should pass to the administrator, wherever, at least, and to the extent that there was a trust imposed in regard to the disposition of the proceeds of a testamentary nature; as we have already suggested that the failure to enforce such a trust at this early period arose from the then undeveloped state of the powers of a court of equity; but the point we make is still clear, that no distinction was here drawn between executors and any other trustees, as to the status of a power to sell conferred upon them, or, consequently, its capacity to survive. The same principle appears also in the cases heretofore cited, of the survivorship of powers given to sonsin-law,2 feoffees,3 and the like.4 Indeed, in the modern and very exhaustive case of Conklin v. Egerton,b the point was carried so
far that such an administrator was held incapable to succeed to any powers involving a discretion conferred on the executor, although such succession had been conferred by statute ; and this decision is cited and followed in Tainter v. Clark,1 Grreenough v. Welles,2 and other recent cases. But the ground, and the only one, upon which these cases can proceed, is, that a broad line is to be drawn between the office of executor or administrator which is conferred by the court, and the position of the executor as trustee, grantee, or donee under the will.
We regard, then, any reliance upon the " office " of executors to enable a power to survive to a single one as placed upon an unsound basis. On the contrary, we urge that there is no discrimination between executors and trustees in regard to powers, if these relate to testamentary duties; and that they will survive to a single trustee as well as to a single executor.
In Massachusetts, at least, the law should be clear on this point, if decisions can make it so. It has been here held from the first that an executor's or administrator's function, as such, includes the performance of duties relating to the payment of legacies, whether directly or in trust, even if that trust extends over the lifetime of the legatee. The decisions, some of which go to a great length, and may be considered as modified by later authorities, nevertheless clearly show that an executor is bound to perform a testamentary trust, and, therefore, that he is quoad hoe a trustee; and it is a legitimate consequence of this that all powers given him to carry out these trusts will as well survive to him under the name of trustee as of executor. Thus, in Farwell v. Jacobs,3 where there was a direction in a will that the executor should give a reasonable support to the testator's father during his life, it was held that this was a legacy, and a duty to be discharged by the executor as such, and, therefore, by an administrator cum testamento annexo, and that an action lay against the latter in behalf of the legatee. The court, it is true, say, in the course of their opinion, " that the duties of an executor resulting from the nature of his office, and charged upon him as executor, devolve upon an administrator cum testamento annexo, where the authority is not necessarily connected with a personal trust or confidence reposed in him by the testator." But it is very
noticeable that they should hold that the duty in this case was of that character, — that is, that the executor took as such, and not as a special trustee. In Saunderson v. Stearns,1 a similar state of facts existed; and upon the claim being made by the life annuitant under the will, that the corpus of the fund vested in her, because there was no one named as trustee to hold it during her life, the court say: "The supposed difficulty does not occur; for there is a trustee, if not named, yet arising by a plain implication from the words of the bequest, who is entitled to retain the legacy during the life of the plaintiff. The executor named in the will, or any person who may, by law, become intrusted with the execution of it, is the trustee of the legacy during the life of the plaintiff;" and a similar decision was made in Ellis v. Essex Bridge Co.2 In the case of Hall v. Cushing,s the action was brought on the executor's probate bond for Hot investing a legacy given by the will to children at majority, they, meanwhile, to receive the interest; and the defence was that he was not bound as executor, but as trustee, to invest, and that there was, therefore, no breach of his executor's bond. It was strenuously urged that his executorial character ended with the payment of debts and direct legacies, and could not attach to special trusts; and that this trust to invest was not one which inured to him as executor, but as special trustee, indicating a confidence reposed in him by the testator ; and that neither the duty nor trust could pass to an administrator cum testamento annexo. But the courtheld otherwise; and, as to the confidential trust alleged, said "that the direction to invest was intended for the security and productive value of the assets, and would be binding on any one intrusted with the execution of the will." This case, therefore, takes the one step farther in advance, that not merely will the court fasten upon the executor or administrator cum testamento annexo the character of a permanent trustee of trusts not relating to the immediate settlement of the estate, on the ground of enforcing the payment of a legacy, but that this will draw with it the right to the powers given by the testator for the purpose of carrying out such a payment, and the compulsory exercise thereof, wherever the court can see any thing of the nature of a trust to have them employed. Indeed, the court had already,