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though somewhat indirectly, gone so far as to treat a power of sale of land as attaching to the executor as such, because the proceeds were to pay an annuity given by the will.1 In Dorr v. Wainwright, there was a general legacy for life, with a remainder over of certain personal estate. One executor, who, by the rule laid down in the preceding cases, was as such clearly trustee for the lives of two legatees, applied to the Probate Court to be relieved from his executorial bond, and to be allowed to give bond as trustee. It is to be remarked also, that a power of sale of realty, for the purpose of raising the money for these legacies, was given to the executor. The Probate Court refused to grant his petition, and this was affirmed by the Supreme Court on appeal, on the ground that his bond as executor held him to the discharge of this trust; Shaw, C.J., saying, “ The ground upon which the decision in the present case proceeds is, that where the executor does not renounce the trust, but, on the contrary, declares that he is ready and desirous to execute it, ... it was competent and proper for the Court of Probate to decline granting a new commission to the executor, as trustee, and taking new bonds, when such commission would have given no new authority to the executor,” which was the case therefore here. It seems to follow also that the executor as such could have executed the power of sale given, and that it would therefore have vested even in the administrator cum testamento annexo. The same character of trustee by implication was held to attach to the executor in the later cases of Going v. Emery 3 and Nash v. Cutler. 4 In Towne v. Ammidown 5 a money legacy was given to testator's granddaughter upon her marriage, otherwise she to receive only the interest during her life, and the principal to go to other parties at her decease. The executors, on settling their first account, were directed to retain this fund in their hands for the use of the granddaughter; but, subsequently becoming insolvent, the sureties, on their administration bond, were forced to pay this amount to the legatees. To a bill brought by the sureties for reimbursement, it was contended, in defence, that they had paid in their own wrong ; not being bound to pay the amount of the fund, because the duty was upon the executors as trustees, and no longer qua executors, after they had retained it 1 Prescott v. Pitts, 9 Mass. 376.

? 13 Pick. 328. 3 16 Pick. 107, 113.

4 19 Pick. 67, 70.

6 20 Pick. 535.

as a special fund by order of the Probate Court. But the court say, “ This position is not tenable. They were bound to execute this trust qua executors. The manner in which this sum was noticed in their joint account as executors was intended, not to exempt them from further liability to account and pay over, but to show that it was a sum not then to be called for, but to be retained for the purposes of the will. . . . It was their duty as executors to perform this trust. ... This point we now consider as settled by the authorities.”i The decision in Newcomb v. Williams 2 is to the same effect. A. and B. were here appointed executors, and B. specially named as trustee of the residue for C. during his minority, with the duty meanwhile to keep the fund productively invested. B. declined this trust, but retained the fund, and subsequently became insolvent, Suit was brought upon A.'s bond, and prevailed, on the ground that, until A. separately qualified as trustee, the executors were charged with a general trust duty qua executors as to any fund in the nature of a legacy.

In Brown v. Kelsy 3 a similar principle was applied. Here a money legacy was to be invested, and the income to go wholly to A. during her life, and on her death the principal to B. It was held a trust upon the executor, which he must assume, and that the principal could not be placed at once in the hands of A., though it was admitted that, after investment, the fund stood at the risk of the legatees. The trust duties of an executor seemed, therefore, something as tenaciously adhesive as was the fabled shirt of Nessus ; and the decision in Miller v. Congdon,4 that the mere mental determination, though actually made, of an executor to appropriate to himself, in the character of trustee, certain funds bequeathed in trust, but unaccompanied by any open and notorious act, would not discharge him as executor, falls well within the line of the cases already cited ; and the case of Dorr v. Wainwright 5 is expressly affirmed. It had, however, been admitted in some cases since Dorr v. Wainwright, that one holding this double character of executor and trustee might relieve himself of responsibility in the former capacity by any open and notorious act indicative of that intention. This was intimated in Hall v. Cushing ;1 and though the decision of Dorr v. Wainwright implies the contrary, yet the later doctrine was confirmed in Newcomb v. Williams 2 and Conkey v. Dickinson. It was said, in the former case, that any "authoritative and notorious act” would have this effect, and this seems to have been already followed in the case of Prior v. Talbot.4

I Fall v. Cushing ; Dorr v. Wainwright, ante, pp. 679, 680. 3 2 Cush. 243.

4 14 Gray, 114.

? 9 Metc. 625. 5 Ante, p. 680.

But even with this well-recognized exception to the executor's liability, if he chooses to qualify as trustee, it still remains settled that as executor he is trustee for any testamentary purpose which the court construes as a legacy, taking the very extended meaning of that term, sanctioned by the decisions we have mentioned. And it seems to make no difference whether he is called executor or trustee in connection with the particular trust imposed. Thus, in Prior v. Talbot, Isaac N. Prior was appointed executor and trustee by the will, which required “the said trustee" to sell and “ to divide and set apart one-third of the proceeds arising from such sale, . . . and, having safely and prudently invested the same in his own name, to hold the same in trust to pay the income to said Roxana [the testator's widow] during her life, and after her death to hold the same upon the trusts to be thus distributed,” &c. It was held that, notwithstanding this language and the duty charged, he held the fund as executor, and was chargeable as such until he qualified as trustee. In Dascomb v. Davis 7 the court would seem to imply that executors charged with the payment of similar legacies of personal property, and with the power and duty of managing the estate and effects “ of the testator, and disposing of all his lands, &c., for the purposes before mentioned, at such time and in such manner as shall be most likely, in their judgment, to do exact justice to all my creditors, and to be for the greatest advantage of all concerned," had not merely a power, but an estate in possession ; so that they could maintain an action of trespass quare clausum against an intruder, and which would, as an estate, of course, have passed to a single surviving executor. Whereas the same language in Tainter v. Clark was held to confer a mere discretionary power, to which this case stands therefore in direct opposition.

It seems, accordingly, to be clear, as we have already intimated, that if these trust duties attach to the executor as such, the powers coupled with them must equally attach so far as they are necessary to the discharge of these executorial duties, even if terms of special confidence or reliance in the trustee's discretion are found ; and that this discretion is therefore exercisible by a single executor. It is true that in Treadwell v. Cordis, Tainter v. Clark is referred to with apparent approval ; and it is said that the exercise of the power of sale in that case “ was not necessary to the execution of the will, or to the complete settlement of the estate in accordance with it.” But it is submitted that such was not the fact, and that we have shown that the exercise of the power in that case was indispensable to such a settlement, and that, at most, the trustee's discretion extended to the selection of the parcel which he should sell.

1 Ante, p. 679. ,4 10 Cush. 1.

2 9 Metc. 525, 534.

8 13 Metc. 53. 6 Newcomb v. Williams, ut sup. 7 5 Metc. 535.

6 Ut sup.

It is, however, admitted in Treadwell v. Cordis that testamentary trusts are binding on the executor as such; and if it were not clear from the cases already considered that powers of sale attach of necessity to the executorial office where the proceeds are to satisfy such a trust, we think it will be apparent from the cases that follow. In the very elaborately considered case of Shelton v. Homer, 2 the testator had given to his executors, “or those who should take upon themselves probate of the will," a power of sale. It was held that after two executors had qualified, and one subsequently resigned, the other could not execute the power. We shall have occasion to notice this case further on, in connection with the distinction taken between a resigning and non-accepting executor; but it is sufficient here to remark that the power in this case was a bare power, and so declared by the court, there being no purpose directed for the disposition of the proceeds, and that it was therefore not coupled with a trust.3

In the case of Gibbs v. Marsh,4 a power of sale was given by name to the testatrix's brother Walter, who had previously been appointed trustee of certain real estate, under several special trusts; and it was further provided that he, or any successor of his nominated by him to the trusts, might sell and reinvest as the cestuis que trust should direct and advise, or, in default of such advice and direction, as the trustee or trustees should think most for their interest. The trustee died without nominating a

15 Gray, 341, 359.
8 Denne v. Judge, 9 East, 288.

2 5 Metc. 462.
4 2 Metc. 243.

successor ; and the Probate Court appointed a new trustee, whose conveyance of the premises was here in issue. The state of facts certainly disclosed as distinct a confidence reposed in the trustee's discretion as in the case of Tainter v. Clark; in addition to which the trustee there was an executor, and a sale imperative for payment of debts and legacies : and here, as it was contended, the appointee of the Court of Probate — under the statute of 1817, c. 190 — could not succeed to such a discretion, so clearly limited to particular individuals; that to hold this would be to abridge the authority which every owner of property has, to select individuals to manage it, and would transfer it to persons unknown to him ; that the power of sale was a naked authority, and rested on personal confidence; and that the testatrix reposed full confidence in her brother, not only in his management of the estate, but in his selection of a successor. That beyond this she extended no confidence, inasmuch as by distinct and precise words she limited the power of sale to her brother and his nominee. But the court held that as there was a trust of the proceeds, and the power was to effectuate this trust, its exercise was compulsory and not discretional, and that it could well pass to the probate appointee.

The case of Whitney v. Whitney may be referred to merely to show that an executor is the necessary trustee of testamentary trusts, and that a probate appointee succeeds thereto. There was there no power of sale to be exercised.

But in Alley v. Lawrence, where a power of sale was given to executors, to whom the property had already been devised in trust to support the testatrix's children during their minority and that of the youngest of them, and then to divide it among them equally, it was held that the will gave the power of sale to them as executors, and that a deed executed by them simply as such was good. This case is therefore express to the point that such a power would survive ; for as attached to the office of executor, or, in more intelligible language, because coupled with the trusts to which the executor succeeded, it could be well executed by any one on whom those trusts might fall, even an administrator de bonis non. The case of Warden v. Richards 3 is even more strongly in point. The testator there appointed his

1 4 Gray, 236.

2 12 Gray, 373

3 11 Gray, 277.

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