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brothers, by name, his executors, and authorized them “ to take upon themselves the trust thereby created, &c., and, if necessary for the execution thereof, to sell any part or all my real estate.” One brother declined the executorship. The case presented all the points of objection to the survivorship of the power which were deemed fatal in Tainter v. Clark. The power was given to two nominatim, as the testator's brothers, and by their judgment of the necessity of the sale, a clear discretion was vested in both. But the court held that, as the object of the sale was to pay debts and legacies, it was a power coupled with a trust, and could well be exercised by one executor. In view, therefore, of what trusts have been uniformly held to be legacies by the same court, this decision goes the full length for which we contend.
Nor do the later decisions present any conflict with this case. In Carson v. Carson, which might, in a hasty perusal, be thought to have an opposite tendency, the facts were, that executors, who were charged with payment of the income for life to the widow, and then the principal to her residuary legatee, and vested with a power of sale and investment, were sought to be held in trustee process for a debt due by the latter. The court, embarrassed by the language of the statute, by which all “ debts, legacies, &c., due from or in the hands of the executor or administrator as such may be attached” by trustee process, while admitting that this trust attached to the executor, and unable to deny the long course of decisions uniformly holding such a gift a legacy, and the executor, as such, vested with its possession, nevertheless use language hardly warranted by the cases, saying, “ This clearly contemplates a trust in the executors beyond the duty of paying the debts and distributing the assets in the ordinary way ;” and again, “ They [the executors] do not hold the property merely in their capacity as executors. If they did, their trust would be discharged, and their duty performed, when they had collected the personal estate, paid the debts, legacies, and charges,” &c. They then proceed to point out the inconvenience, or rather impossibility, both of the executors performing their trust, if a remote distributee's creditor could compel them to account to him immediately, and the equal impossibility of keeping the judgment of such a creditor alive and operative until the estate accrued to the legatee in possession. It is really upon this ground that the case was decided, and the remarks of the court already quoted cannot be considered literally correct.
16 Allen, 397.
Indeed, the class of decisions in Massachusetts upon which we have been commenting are well founded upon English authorities, and on the principle there laid down that such a direction to distribute personalty, coupled with a power of sale of realty, makes an equitable conversion of such realty, out and out; giving the character of personalty thereto from the date of the will, and to the extent to which such distribution is to take place among the legatees; and that these become thereby cestuis que trust, with a right to insist on the exercise of the power.
Thus, in Foone v. Blount,1 by the terms of the will, the executors were to pay certain specified legacies, and to this end were “ appointed, constituted, and empowered " to sell certain real estate. It was objected that this was a devise of lands, not a legacy, and that therefore the devisees, who were papists, could not take; but the court declared this to be a power not coupled with a trust in real estate, but in personalty, and operative from the testator's decease to convert the land out and out. Similar decisions had been made in equity in Yates v. Compton,2 and Att'y-Gen. v. Gleg, and a power to sell to pay an annuity was held a conversion out and out from the testator's decease ; and the same principle has been fully recognized in other courts in this country ;4 and that, as the land became personalty, e converso, the power to deal with it attached to whoever should become charged with the executorial duty; to a single surviving or accepting executor, or even an administrator cum testamento annexo.
In Treadwell v. Cordis, above referred to, the distinction is taken that, while under the Statute 21 Henry 8, c. 4, if one or more executors die, or do not accept the office, the survivor or remaining executors may well execute a power attached thereto, yet it is otherwise where they all accept and one thereafter resigns or renounces, because the power has vested in him, and his renunciation cannot divest him thereof; and ancient decisions to this effect are referred to, and the same view has been adopted, in more than one modern case. Indeed, in the
i Cowp. 464. ? 2 P.W. 308, 310–311. 31 Atk. 356.
4 Meakings v. Cromwell, 1 Seld. 136 ; Bogert v. Hertell, 4 Hill, 492; Stagg v. Jackson, 2 Barb. Ch. 86; Boyd's Lessee v. Taylor, 2 Dall. 223. 5 5 Gray, 341.
615 Hen. 7, 11. 7 Conklin v. Egerton, 21 Wend. 430, and cases there cited; Tainter v. Clark, 13 Metc. 220.
case of Conklin v. Egerton, a very elaborate examination is made of the ancient law upon this point; and the testamentary duties of an executor are limited to dealing with personal property merely, while as to realty the executor acts not qua executor, but as trustee, whether he is a devisee of the land itself or only the donee of a power to sell it, because the will in this respect is a conveyance, not a testament. But, however well ascertained this distinction may have been at the early period of the common law, it is submitted that the course of decision in this state, already fully examined, by which the executor, as executor, stands charged with trust duties and powers properly attached thereto, has substantially overruled it. It would, indeed, be an anomaly for the same court to hold that the sureties on the executor's bond should be held responsible for the disposition of the proceeds of a power of sale conferred upon him even by the name of trustee, and yet that his approved resignation of the office of executor should not divest him of all title to deal with the land, when he had surrendered his power to act under the will from which alone it had proceeded. And as this distinction went on the ground that the resignation of his office by the executor did not relieve him of his character of grantee, it is hard to see how his refusal to accept that office from the Probate Court could have any other or greater effect. Indeed, under such a doctrine, nothing but a reconveyance by him would be effectual to free him.
But if this distinction could be considered as having any foothold in this state, it has been definitely overruled by the late case of Gould v. Mather, and the law placed on the ground for which we have been contending. The testator in this case, in the first clause of his will, appointed his wife and one Marshall respectively his executrix and executor ; in the third clause charged “ the said executrix and executor” with trusts during ten years to discharge such mortgages as they should deem expedient, to reserve such an amount as they might deem necessary for the support of the executrix, and, during the same period, to reserve also such sums as in their judgment were necessary for the support of the testator's daughter and sons. In the fourth clause he directs that, “ If it shall be deemed necessary
1 104 Mass. 283.
or expedient to dispose of any of my real property for the benefit of the estate in the judgment of my executrix and executor, I hereby give them full power to do so, and invest the sums so received for the benefit” of the cestuis que trust.
Here, in the first place, the power was given nominatim. The word “ said ” does not, it is true, occur before executrix and executor; but to infer thence that this meant to refer to the office and not to the individuals already named, would be to assert that the testator meant there should be a succession of one male and one female in that office. It is clear the word “ said ” is omitted by inadvertence. In the second place, the power was given expressly in confidence and relying on the judgment of these two. In the third place, the duties which the power was to facilitate the execution of were trust duties, and only testamen. tary in the sense that they were contained in the will.
Both the executor and executrix qualified ; the former subsequently resigned, and the latter alone executed the power of sale. It was objected that the power was a bare power, was discretionary, and could only be executed by both. But the court sustained the sale, and held that the trust underlying the power, and connected with duties charged on the executor by the will, attached to the office, were coupled with a trust, and would have survived to one executor on the decease of the other. “ The power of sale in question,” says Ames, J., “it is true, may not be, in the strict sense of the word, indispensable to the final distribution of the estate ; but it is manifestly subservient and auxiliary to the execution of the trusts which he has seen fit to connect with the administration of the will. It is certainly appropriate to and in entire harmony with the mode of adminis'tration which he has pointed out, and the functions which he has thought proper to connect with the office of executor. It is part of the executorship,” &c. The learned judge then remarks upon the distinction between resignation and non-acceptance. “ The rule [of survivorship] seems to be the same also if one of the executors had refused to accept the trust. . . . It is difficult to see why a vacancy occasioned by the resignation of one of two, which is simply a refusal to be concerned with the trust thereafter, can stand on any different ground. The power seems not to be a mere naked authority, but is coupled with the trust of administration as one of its incidents, and its exercise is a matter of duty, and not of mere arbitrary discretion, whenever the necessity for its exercise shall arise.”
A similar decision had been reached in the recent and almost parallel case of Chandler v. Rider,1 the only point of difference between the two being that the distinction last considered was not in issue in this case, as the power was exercised by a surviving, and not a continuing, executor. But the power was as discretional, and the right to the proceeds seemed to be wholly dependent on the exercise of that discretion. Nevertheless, the court held that the power survived.
We consider, then, that it is well settled — in this commonwealth at least — that all powers attached to testamentary trusts, which are not by express terms restricted to the donees, will attach to whoever occupies the position of executor, though he is but the single accepting, surviving, or continuing executor of several, even though expressly named ; in a word, that the nominatim rule is entirely abrogated. And we think it follows, as a necessary consequence, that the same powers can be exercised by an administrator cum testamento annexo, and that the authority of Tainter v. Clark is seriously weakened, if not overruled. We are aware that in Greenough v. Welles ? a different conclusion was reached ; but we do not think that the doctrine, or rather dictum, put forward in that case can be maintained against the later authorities already considered. The power in that case which was held to be personal, so as not to pass, was given to the executor to enable him to invest the proceeds at interest for the benefit of the testator's daughters for life, the principal to be divided at their decease. This clearly differed in no respect from the power in Gould v. Stratton ; on the contrary, its language was much more imperative, there being no express reference to the executor's discretion. It is also to be remarked that the point was quite unnecessary to the decision of the case, and that its discussion was waived by counsel. But, however this may be, the language of the subsequent decision, in Blake v. Dexter,: seems to establish clearly the doctrine for which we contend. “In general, where the trusts are necessarily connected with the official duties of the executor, and are obviously subservient to the due execution of the will, the powers and trusts
1 102 Mass. 268.
? 10 Cush. 571.
3 12 Cush. 559, 569.