James Tillinghast, for the respondent: —
I. The power of sale given in Mrs. Ward's will is revoked by the codicil. The will evidently contemplates, that whatever
moneys, in the discretion of the trustee, the circumstances of Mrs. Rogers may require, are to be raised by sale of the estate, while the codicil applies only the rents and income to this purpose, (evidently contemplating they will prove sufficient,) leaving the estate itself inalienable during her life, or, at least, during her coverture.
II. At the most, the power of sale is strictly a discretionary power to Moses B. Ives, the first trustee, personally; and the will containing no language extending it, or showing any intent to extend it, to his successors in the trust for the time being, it expired with his decease, and does not pass to the new trustee, the present complainant, appointed by the court. However much it is to be regretted for the purposes of this particular trust estate, this will admits of no other construction without direct departure from, and an entire disregard of, all settled authority on this subject. Hill on Trustees, 211-226, 489, notes and cases; Sugden on Powers, 152, 214; Townsend v. Wilson, 1 Barn. . Ald. 608; Cole v. Wade, 16 Vesey, 27; Fordyce v. Bridges, 2 Phillips, 497, (22 Eng. Cond. Ch.); Bowles v. Weeks, 14 Simons, 591, (37 Ib.); Newman v. Warner, 1 Simons, N.S. 457, (40 Ib.); Oglander v. Oglander, 2 DeG. Sm. 381; Wilson v. Pennock, 3 Casey, (27 Penn. St. Rep.) 238; Belote v. White,
2 Head, (Tenn.) 703.
T.A. Jenckes, for the complainant: —
I. The new trustee has the same power of sale as the trustee originally named. The decree appointing him substitutes him to the place of the original trustee, with all his powers. This is in accordance with the general rule in such cases. Hill on Trustees, 211. But the defendant seeks to bring this case within the exception of this rule, (stated in the next paragraph of Hill, p. 211,) where the power is of a kind that indicates a personal confidence. No such intent to limit the powers of the trustee can be fairly inferred from the language of the will. This instrument is remarkable for several important omissions. Two of these have already been pointed out in explanation of the attempt to supply them by the codicil. Another omission, and one common to most of the wills drawn and executed in this State, till recently, is that of any provision for the appointment of a new
trustee. Other necessary provisions in trust wills, not important to this case, however, cannot be found in either the will or codicil. Although we find in the will no provision for the appointment of a new trustee, yet a court of chancery always had the power to supply the omission. The rule of decision in that court, as above quoted, is to the effect, that a trust once created shall not only be sustained, but sustained in full force, and shall not be lost, destroyed, or impaired, by the non-acceptance or the death of a trustee, but that the trust
shall be executed, as created, irrespective of the person named as the person chosen to execute it.
The burden of proof that the powers of a trustee were personal in their nature lies upon the party seeking to bring the case within the exception to the general rule of the court. This case is clearly within the general rule. The devise is to the trustee in fee. His successor, appointed by the court, therefore takes a fee. The entire legal estate is vested in the trustee, whether named in the will, or to be named by the court. Three powers only of the trustee are specifically named: the power to sell; the power to reinvest; the power to apply the proceeds of sale to the support of the beneficiary. The powers to sell and reinvest are clearly within the residuary powers of a trustee. And these powers are given to the trustee, and not to the person named. Thus, the power to sell is granted to "Moses Brown Ives, trustee as aforesaid. " The words, "as he may deem expedient," simply imply the ordinary discretion of selection of the portions to be sold, and not the special discretion which is reposed in the judgment of a particular person. So also of the reinvestment. It is to be made under the ordinary liability of the trustee, and at his ordinary, not special, discretion, and subject to the trusts declared. Any new trustee may as well exercise these powers, under his ordinary liability as trustee, with safety to the trust estate. These powers are granted to the trustee for the purpose of the trust, and the protection of the trust estate and the preservation of the trust, and not to the person named as trustee.
The cases cited by the defendant's counsel show that the fair construction of the instrument should be made from the whole taken together, and not from a critical view of certain phrases in it. To this point, especially, is 1 Sugden on Powers, 152, § 50.
In Cole v. Wade, 16 Vesey, 27, the trust and powers were of such a nature that the ground of their creation was personal confidence entirely. In effect, the testator granted to his executors the power of making a will so far as his residuary estate was concerned, limiting the objects of his bounty to his "relations and kindred." It is manifest that such a power could be executed only by the persons named. In Fordyce v. Bridges,
2 Phillips, 497, the trustees were empowered to select investments for personal estate in different countries, under different laws, — not to sell and reinvest under the law of England. Such a choice necessarily required a special discretion, which could not be revived in new trustees appointed by the court. Bowles v. Weeks, 14 Simons, 591, has no application to the present case. In Newman v. Warner, 1 Simons, (N.S.) 457, the grant of the power was not made to the trustees as trustees, as in this case, but to the persons named as trustees for the purposes of preserving contingent remainders, and "to the survivor of them and the executors and administrators of such survivor," thus limiting the exercise of the power to persons coming within this description. Oglander v. Oglander, 2 DeG. Sm. 381, has no application to the case at bar. The first American case cited, Wilson v. Pennock, 27 Penn. St. Rep. 238, is a direct authority in favor of the plaintiff. The marginal note to that case is as follows, (see 17 U.S. Dig. 581): "Discretionary powers conferred on a trustee will devolve upon his successor, appointed by the Court of Common Pleas under the act of June 14th, 1836, after the first had been removed." The Tennessee case, Belote v. White, 2 Head, 703, has no bearing on the case at bar, as in that case, the power of sale was expressly limited to the trustees named, "or any two of them, or the survivor of them." 20 U.S. Dig. 286.
II. In the case at bar, the title offered is one that cannot be objected to upon the technical grounds already considered. The trustee holds and represents the entire legal estate, and conveys it. The beneficiary (her husband joins) holds the entire equitable estate, and makes conveyance of that to the purchaser. There could have been no question about the power of conveyance under the original will. It is not necessary to cite authorities, when the general rule is as well established as that already
quoted. But in this case the codicil settles the only doubt that might have been raised upon the validity of the conveyance tendered. The trustee is therein directed to convey the trust estate, in case the beneficiary should die in the lifetime of her husband and without exercising the power of appointment by will, to her "heirs and assigns " in fee. This direction recognizes the beneficiary's power of conveying her equitable estate by deed. There is no language which can be construed as intending to put a restraint upon either anticipation or alienation of her property. A good title to the estate contracted for is therefore tendered to the defendant, and he should be decreed to perform his contract.
Tillinghast, in reply: —
I. The power of sale in the will is revoked by the codicil. One obvious purpose of the codicil was not so much to provide for the appropriation of the annual income, (for under the will, Mrs. Rogers would have been entitled to this, and, if received by her husband, equity would have held him to have received it as her trustee,) but to vest, beyond all question, the legal title of the estate in the trustee, during the life, or at least, during the coverture, (whichever, in this respect, may be the proper construction of this codicil) of Mrs. Rogers. Had the will stood alone, it might have been extremely doubtful whether she did not take the full legal title in fee simple as an executed use, subject to the collateral power to Moses B. Ives to appoint the estates in fee simple, overriding and defeating her estate. Neither the power of disposition over the proceeds, given Mr. Ives, (any more than in the case of powers to executors to sell for the payment of debts) nor the limitation, "for the sole, separate and exclusive use and benefit" of Mrs. Rogers, though a feme covert, ( Williams v. Waters, 14 Mees. Welbs. 166, Ware v. Richardson, 3 Maryland, 505), nor that the power is to be exercised by sale and conveyance, would seem of necessity to require that the legal estate should be vested in the trustee, if indeed the absence of all intermediate active trusts — of all declaration as to the mesne rents and profits — did not require, that until the exercise of the power the legal estate should vest in the cestui que use. But while this was one obvious object and effect of the codicil, viz., to vest, beyond question,
the legal title in the trustee, during the life or coverture of Mrs. Rogers, (but no longer, see cases infra, ) yet neither this, nor to confer upon her testamentary power of disposition over the estates during coverture, seem entirely to answer its purposes. It evidently looks further. Upon Mrs. Rogers' decease, living her husband, the trustee is to stand seized to certain specified uses " of the said estates, " not merely of so much of them as may then remain, but of the estates themselves. Now, it is clear, if the power of sale remains, the whole estate may be converted and paid over to Mrs. Rogers, during her life, to the entire exclusion of those claiming under these uses, though claiming as purchasers under this codicil. Again, if the trustee sells and re-invests, upon what trusts shall he re-invest? those of the will alone, or those of the will and codicil together? If of the will alone, Mrs. Rogers' testamentary power over such re-investments is gone, and thus, evidently, the purpose of the codicil defeated. But to say that the re-investments are to be upon the trusts of both will and codicil, is to strain the language of the will to meet something not in existence, and which could not have been in the contemplation of the testatrix at the time of using it. The re-investments must be upon the trusts of the will alone. Gallini v. Noble, 3 Mer. 691; Francis v. Collier, 4 Russ. 331, (4 Eng. Cond. Ch. 332). We submit, therefore, that it is not consistent with the whole scope and purpose of the codicil, that the power of sale should remain, and that it is therefore revoked.
II. But supposing the power of sale is not revoked by the codicil, still the plaintiff is not entitled to a decree. 1. It is claimed that the deed of release from Mr. and Mrs. Rogers, tendered to the defendant, in some way confirms and completely validates the title attempted to be made to him by the trustee, even if the title made by the trustee himself is itself defective. Upon this demurrer, it is a sufficient reply to this, to say, that this bill is framed on no such ground. If the title to be made to the defendant rests at all upon this release, the bill is defective for want of parties. If the defendant is to be forced to take a title resting upon Mr. and Mrs. Rogers' deed, he is, at least, entitled to have them come in as parties to the bill, so that they and their respective interests in the estate may be bound by the
decree. But apart from this, this release is a mere nullity as regards this case. It clearly is so, unless Mrs. Rogers has in herself a complete power of appointment or disposition over the fee of this land, — a power which she might equally well exercise adversely to, as concurrently with, the trustee, and which he would be compellable to confirm, by releasing to her appointee or grantee the legal title. It is obvious such was not the intent of the testatrix in creating this trust. But it is claimed Mrs. Rogers has this power, because it is claimed she has the full equitable fee in these lands. We reply, first, even if she has, still it is now the settled law of this State, in accordance with the better policy and reason upon this subject and with the weight of American authority, that she has only those powers over that estate which are expressly conferred upon her by the trust instrument, not as the argument for the plaintiff seems to assume, all powers that are not prohibited to her, but only such as are expressly granted. Cook v. Metcalf, 2 R.I. Rep. 355. We look in vain, in this will and codicil, for any express power to Mrs. Rogers to appoint or convey these lands by deed, or in any other manner, except, in a single contingency, by will. It is said, indeed, that by the codicil, in a certain contingency, the estates are limited to the use of her heirs and assigns, — thus, it is claimed, recognizing her power of conveying her equitable estate by deed. The first and all sufficient reply to this, for the purposes of this case is, that this limitation is upon a contingency that has not yet happened and may never happen, to wit, the decease of Mrs. Rogers in the lifetime of her husband; and the power, if any is to be implied, cannot operate beyond the given contingency. But apart from this, this is far too broad an inference from this word "assigns," used in this connection. No such force could have been intended for it: Such a power, if intended to have been given, would not have been left to such implication. The word seems rather to have been used here inadvertently, as an usual, casual expression, without reference to any definite meaning or force to be given it. Secondly. We reply as to this release, Mrs. Rogers has not the equitable fee in these lands, but a mere equitable life estate. The remainder to her heirs, whether under the codicil, in the event she dies intestate in the lifetime
of her husband, or under the will, in the event she survives her husband, is clearly a legal estate — an executed use — and so cannot coalesce with her equitable life estate, and her heirs consequently take as purchasers. 2 Jarman on Wills, 244; Shepland v. Smith, 1 Bro. Ch. Rep. 74; Doe, dem. Hallen v. Ironmonger, 3 East, 533; Robinson v. Grey, 9 Ib. 1; 2 Washburne on Real Prop. pp. 169, 170, § 6. This being so, it is obvious, that even supposing this release can operate at all in the absence of any express power, yet, in any view, it can only operate to pass Mrs. Rogers' present interest — her equitable life estate — and cannot estop her, or those claiming in remainder, from setting up against it a future acquired, or future vesting, interest in these lands. Nor can it extinguish her power of appointment by will, given in the codicil. Parker
v. White, 11 Vesey, 209; Townsend v. Wilson, 1 Barn. Ald. 608, in every respect a far stronger case than the case at bar; 2 Washburne on Real Prop. p. 309, § 3; Ellis v. Fisher, 3 Sneed, (Tenn.) 231.
2. The case then (supposing the power of sale in the will not to be revoked by the codicil) rests simply upon the question, whether that power survives and passes to the present plaintiff; and this again upon the question, whether or not this was a discretionary power within the meaning of that term as defined by the adjudged cases; if it was, it is not denied that it does not survive. Trust powers of sale like this are not ordinary powers, in the sense in which the term is evidently used in the argument for the plaintiff. Unless expressly conferred, either in direct language or by necessary implication from other express trusts, they do not exist. "A trustee could rarely be justified in selling the trust estate for any purpose, however beneficial, without an authority, express or implied, conferred on him for that purpose by the trust instrument." Hill on Trustees, 471, (top 685.) Nor do these powers, if discretionary, survive or pass with the transmission of the estate unless so provided in express terms; prima facie they are personal to the original trustee. As the rule is stated as the result of the authorities, in Hill on Trustees, in the paragraph immediately following that quoted for the plaintiff: "Where, however, a power given to the original trustee is of a kind that indicates a personal confidence, it will, prima facie,
be confined to the individual to whom it is given, and will not, without express words, pass to others to whom, by legal transmission, the character of trustee may happen to belong; and though the estate, with the trust attached to it, will be in the trustee appointed by the court, yet the power (being one of that description) will be extinct." Ib. 211, (top 301.) Again: "a power of sale, whether it be a common law authority or one taking effect under the statute of uses, can be exercised only by the parties to whom it is expressly given. " Ib. 472, (top 687.) "Powers of sale, of leasing and of varying the securities, also come within the class of discretionary powers which is now under consideration." Ib. 495, (top 725.) Now, it is difficult to conceive how a power of sale can ever be discretionary, if not so in the present case. It certainly falls far within the definition of those powers given by the same author: "Whenever an authority is given to trustees which it is either not compulsory upon them to exercise at all, or, if compulsory, the time or manner or extent of its execution is left to be determined by the trustees, that is obviously a discretionary power, though the extent and nature of the discretion may vary in each case." Ib. 485, (top 711.) See, too, cases referred to in the opening. It is said the burden upon this question is upon the defendant. This is a matter of little consequence, as it is purely a question of construction. But where, as here, within six or eight short lines within which this entire power is stated, it is three times
declared by the testatrix herself to be discretionary, the burden would rather seem to be upon those who asserted the contrary. Again, it is said, that the power in this case is conferred upon "Moses B. Ives, trustee as aforesaid," and from this it is argued that the power survives, and passed to the present plaintiff. But it is settled that no such effect can be given to this language. Much stronger language, conferring the power upon the trustees as such without naming them, (here is a mere personal description added to the name,) and even accompanied by language in express terms continuing the power beyond the original trustees, was used in some of the cases referred to in the opening, which yet held that the power did not pass to the appointee of the court. See, also, Down v. Morrall, 1 M. Keen, 561, (7 Eng.
Cond. Ch. 165); but further authority upon a point so clear cannot be needed.