Majority
p. 531Abraham Franklin, John Franklin, Thomas Franklin, Anthony Franklin Walter Franklin, John Townsend and Rebecca his wife, and others—Appellants. against Walter F. Osgood, Edmund Charles Genet and Martha B. his wife, Samuel Osgood and Juliana his wife, and Susan K. Osgood—Respondents. Walter F. Osgood, Edmund Charles Genet and Martha B. his wife, Samuel Osgood and Juliana his wife, Susan K. Osgood. Dewitt Clinton and Maria his wife, and John L. Norton and Sarah his wife—Appellants. against Abraham Franklin, John Franklin, Thomas Franklin, Anthony Franklin, Walter Franklin, John Townsend and Rebecca his wife, and others—Respondents. ALBANY, March 1817.
Headnote
A devise to executorsto sell lan(J> a?\ coupied wit” any interest.in the subject, is a na^¡ch g’”®r’be “““^ciftoís wlu^and’u one doeínr" suTvive to the others. But where the power, per se, is merely a naked power, and yet in other parts of the will theíe are trusts and duties imposed upon the executors, which require a sale to be made, in order to effectuate the intent of the testator in such case the power survives * The testator devised to A, his wife, and to B, C, and D. each-, one eighth of the residuum of his real and personal estate? he appointed A, B. C and 1>, his executors, and impowered his executors that might act, and the major part of ¿him. their heirs or executors, to sell and convey bis real estate, not before disposed of in the will: the executors were also authorized to lease the land, to distribute his effects; ami one eighth of his residuary estate he ordered to be put on interest and paid annually to his sister, S. C , and on her death the principal and interest to be paid to her daughter B and C, only undertook the execution of the will; and after both their deaths, A qualified as executrix and sold the land, field, that the power was coupled with the interest which the executors had as devisees of one half of the residuary estate; and besides, thai- being coupled with the performance of certain trusts anu duties, ami the intention of the testator as collected from other parís o, the will, being that it might, under certain circumstances, be executed by le»s than the whole number of acting executors, the powe , even had it been accomj amen with no interest, wvuld have survived; and that the survivor, or his heir» orexecutois, might act, without the concurrence oí the heirs or executors of the deceased acting executors. Inadequacy of price p r se, is no ground to set aside a conveyance, unless it he so gross as to be evidence of frau'-. In judging of the adequacy or inadequacy of price, the condition and circumstances of the estate, at the time of the ‘ale, must be regarded It is no objection to a sale hy a trustee-, that it was made to his near relations. It is sufficient to support a sale by a trustee, that it was made bona fide and for a valuable consideration! and that there wasuoi supine negligence on his part: it is not necessary to show that he acted with the utmost possible prudence and sagacity. A purchase froni a trustee by one co cesluy que trust, without the consent or concurrence of the other cestuy qut trusts, and in exclusion oft hem, is valid. No relief can be granted, under the general prayer in a bill in chancery, which is of a nature distinct and independent of the special relief prayed A point not raised in the Court below, cannot be noticed upon appeal.THESE were original and cross suits in the court of chan- ° eery. Samuel Osgood and Mary his wife, the sole survi J ° v ving executrix of the last will and testament of Walter Frank- © lin, deceased, her former husband, in November, 1808, filed a bill in the court below, in which they stated that Walter Franklin, being the owner of a large real and personal estate, on the 21st of February, 1778, made a will, containing the following
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clauses: “ The whole residue of my estate I give and bequeath as follows: one eighth part 1 order put out on interest, as soon asean be done, or by degrees, as it is divided; and the interest that is made therefrom, 1 order to be paid to my sister Sarah Corsa, yearly, as long as she lives; at her death, 1 give the whole of the interest and principal thereof to her daughter, Mary Corsa, to be paid her when she has attained to twenty-one years of age, or is married and has a child or children, which child or children is to be her heirs, and to receive that eighth, if she dies before it’s paid her; but if she dies and leaves none, then I give that eighth to my daughters, Maria and Sarah Franklin, or the survivors of them. One other eighth I give the use of to my sister Mary Wistar, as long as she lives, and after her decease, I give it to her four children, Thomas, Catharine, Sarah, and Mary Wistar, or the survivors, share and share alike. And I give to my dearly beloved wife, Mary Franklin, one eighth part. And to my dear daughters, Maria and Sarah Franklin, each one eighth; and if one dies without children, the survivor of theni t° have that one’s eighth; but if they both die in their non-age, and leave no children to receive their parts, then I order their shares of the residue to be given my brother John’s son, Waller Franklin; and to my brother Thomas’ son, Walter Franklin, or their heirs, share and share alike. And I give my brothers, John Franklin, Thomas Franklin, and Samuel Franklin, the other three eighths, being each one eighth. And I order that the money and effects be distributed and divided, from time to ' time, as it can be raised from my debts and estates, by my executors hereafter named; but they are to be careful to keep a. sufficiency undivided to pay oil all legacies as they become due, and to keep the estate as much on interest or rents as they can, for the general benefit, and to be careful to take such securities for the money as they think is certainly good, by mortgages or personal sureties : some security to be.taken to every single per- • son’s bond. Item. I do hereby appoint my dear wife, Mary Franklin, with my three brothers, John Franklin, Thomas Franklin, and Samuel Franklin, to be executors of this my last will and testament, but on this express condition and proviso, that if they owe me any money at the time of my decease, either by bond, note, or book-debt, that my appointing them, and their acting as executors, shall no way clear them from paying said debts to my other executor, or executors, but the same by them shall be paid
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for the general benefit of my estate; and if they, or either, do not act on this condition, then they are not to be my executors. 1 give to my executors that may act, and to the major part of them, their heirs or executors, full power to sell, and to assign, and convey away any or all my houses, lands, and tenements, and that forever, that are not already given away in this will foregoing.’’ The bill further stated, that the testator died on the 1st of August, 1780, leaving his will in force, of which Samuel and John Franklin alone undertook the administration, and were the only acting executors as long as they lived, respectively, the latter dying in September, 1801, and Samuel Franklin, in September, 1807; and during this time, from the personal effects and sales of lands, they received very large sums of money, which they employed in trade: that the three executors named in the will, jointly, and John and Thomas Franklin, separately, were indebted to the testator in large sums of money, which are still unpaid: that the plaintiff, Mary, the widow of the testator, on the 24t.h of May, 1786, married the plaintiff, Samuel Osgood; that after the death of Samuel Franklin, Osgood and his wife undertook the execution of the will; that the debts of the testator had been paid, and legacies discharged, excepting the residue of his estate ; that John and Samuel Franklin were, at the time of their death, indebted to the estate for money and property, received by them as executors, which debts were still unpaid; that the complainants had endeavoured to convert into money all the remaining property and debts in order to make a final distribution of the same according to the will: that they had sold the residue of the real estate, not specifically devised, and not before sold, for the sum of 25,000 dollars, which they had received; and which, with the sum of 347 dollars, was all that they had received ; that Thomas Franklin was dead, and his executors made defendants that the other defendants in the bill stood in situations by which, under the will, and in consequence of births,-deaths, and marriages, they claimed, or might be entitled to some share of the residue of the estate; that the executors of Samuel Franklin were insolvent, and that some of the executors of John Franklin were also insolvent.
The objects of the bill xvere a discovery and account from the executors of Samuel, John, and Thomas Franklin, and for a distribution of the residue of the estate by a.decree of the court.
The ansxvers of the defendants, Dewitt Clinton and Maria his wife, and of John L. Norton and Sarah his xvife, admitted the
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facts of the bill: the answers of the other defendants admitted the facts stated in the bill, excepting certain matters immaterial to the questions discussed in this court, but insisted that the sale mentioned in the bill of the residuum of the real estate was void for want of power in the executrix, and as fraudulent. The suit was, afterwards, abated by the death of Samuel and Mary Osgood, and was revived by the respondents in the first entitled cause. But previously to their death, viz. on the Pth of June, 1809, a cross bill was filed, (most of the plaintiffs being the defendants in the original suit,) against Samuel Osgood and Mary his wife, Dewitt Clinton, and John L. Norton.
The cross bill stated the will of Walter Franklin, by which he appointed Mary Franklin, now Mary Osgood, and his three brothers, John, Thomas, and Samuel, his executors, giving to his said executors, that they might act, and to the major part of them, their heirs, or executors, full power to sell, and to assign and convey away, any, and all, his houses, lands, or tenements, and that forever, not specifically devised in and by his said will: that he, likewise, gave to each of his said executors, who should act, to execute his said will, the sum of .200 pounds, then currency of this state, in lieu of all other commissions and rewards whatever, for executing his said will. The bill then stated several preliminary matters, relating principally to the administration of the will, and the rights and characters in which the complainants sued, and the intermarriage of Clinton and Norton with two of the daughters of the testator, and of Samuel and Mary Osgood, and that Clinton, Norton, and Osgood, had? in right of their wives, become respectively entitled to one eighth part of the residue of the testator’s estate. The plaintiffs in the cross bill then proceeded to state, that among other tracts or parcels of land, part of the residue of the real estate of the testator, which remained unsold and undistributed, at the time of the decease of his executor, Samuel Franklin, were the following, to wit: 3,800 acres, or thereabouts, in one or all the counties of Otsego, Schoharie, and Montgomery; 4,400 acres, or thereabouts, in the same counties; 4,600 acres, or thereabouts, in one or all the said counties ; a tract of land on or near Lake George, the quantity of acres in which was unknown to the plaintiffs ; 850 acres situate, as the plaintiffs understood, in the town of Queensbury, in the county of Washington i 12 lots of land situate, as they had understood, somewhere
p. 535
on the Susquehannah, but they were ignorant of the quantity of acres; also, a tract containing, as they had understood, about 5,000 acres, situate, as they had understood, at or near Hillsborough, in the state of Vermont; one other tract of about 5,000 acres, situate, as they had understood, at or near Reading, in Vermont; and one other tract of about 1,000 acres, situate, as they had understood, at or near Holton, in Vermont; nine rights in the township of Cavendish, in the state of Vermont; and one other tract, containing, as they had understood, fourteen rights in the township of Draper, in the same state, but they were ignorant of the quantity of acres contained in the two last mentioned tracts. That they had been informed, and believed, that there were other tracts of lands belonging to the residue of the testator’s real estate, situate in different parts of the states of New- York and Vermont, and others of the United States ; and that the title deeds, &c., of the residue of the testator’s real and personal estate, were in the possession of the defendants, some or one of them, for which reason they could not give a more particular description; and they stated, that the several tracts of land referred to, were of the value of 200,000 dollars, at a fair and reasonable valuation, and according to the prices the same would bring, upon a just and fair sale thereof to the best advantage ; and that that sum of money might have been, and could then be obtained for the same, if reasonable pains, and proper and necessary measures, were taken for the disposal thereof. The plaintiffs then stated that they had been advised, that Mary Osgood had not any legal power or authority, under the will of the testator, as the surviving executrix thereof, to sell the residue of his real estate, and that, therefore, the sale made by Osgood and wife was void in law: but, that, should they be mistaken in this particular, they contended and insisted, that the sale should not be carried into effect, inasmuch as Osgood and wife, and Clinton and Norton, well knowing the value of the premises, had corruptly and collusively agreed among themselves, for the purpose of defrauding the plaintiffs out of their just proportions of the residue of the real estate, that Osgood and wife, under the supposed authority to her, should convey all the said residue to Clinton and Norton, for the inadequate and small sum, when compared with the real value of the property, of 25,000 dollars ; that in pursuance of such corrupt and fraudulent agreement, Osgood and wife executed a
p. 536
conveyance, or conveyances, in fee, to Clinton and Norton, for ^le smaU and inadequate consideration of 25,000 dollars, which sum they are desirous of distributing among the plaintiffs, and those interested in the residuary estate, as and for the whole value thereof; and they charged various corrupt motives, and secret and fraudulent trusts, against the defendants. The plaintiffs further alleged, that the several tracts of land conveyed as aforesaid, and particularly those situated ini the state of New-York, were in parts of the country thickly settled, and to which access could easily be had ; and that, therefore, the fraud practised upon them in the said state is the more palpable, as nothing but negligence so gross and wilful as to render the said Samuel Osgood, and Mary his wife, "responsible to the plaintiffs, for the whole value of the said lands, could have prevented them from ascertaining the real value thereof. The bill charged fraud or gross negligence iii the sale, and prayed that it might--be set aside, and that Osgood and wife might account, &c.
The answer of Osgood and wife, filed the 29th of September, 1809, to the cross-bill, stated the power in the will to be as follows : “ I give to my executors that may act, and to the major part of them, their heirs, or executors, full power to sell, and to assign and convey away, any, or all, my houses, lands, and tenements, and that forever, that are not already given away in this will foregoing;” but the defendants had not the original will in their power or possession, and did not know where it was, unless it was in the possession of the representatives of Samuel or John Franklin. In the part of their answer which related to the real estate, and which is all that is necessary to be here detailed, they stated, that among the papers relative to the estate of the testator, handed them by the plaintiffs Abraham and John Franklin, the executors of Samuel Franklin, were certain deeds, to wit, a deed executed by Peter Dubois, Samuel Verplank, Janies Duane, Henry White, and Jacob Walton, to the testator, Walter Franklin, in fee, dated the 3d of November, ’ 1772, for 12 lots of land, containing 3,800 acres, or thereabout, situated on the south side of the Mohawk river; another deed between the same parties, of the same date, for 4,400 acres, or thereabout, situated on the south side of the Mohawk; and another deed to the testator, in fee, executed by Verplank, Duane, White, and Walton, bearing date on or about the 5th of January, 1775, for 14 lots in the county of Tryon, containing
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4,600 acres, or thereabout; that they believed that considerable parts of these three tracts were sold by the-testator, in his lifetime, or by Samuel Franklin, as his executor, and that the conveyances by Samuel Franklin were either absolute conveyances in fee, or perpetual leases or conveyances in fee, charged with some small and nominal rent, or were agreements that the purchasers should take possession, and that, when a title should he given, the improvements should be valued by persons mutually chosen, and be allowed and paid for; but the defendants had been unable to ascertain how much, and what parts, had been sold and conveyed by the testator and Samuel Franklin, and in what manner, and that Abraham and John, the executors of Samuel, had refused to give them any information on the subject; and that the whole, or nearly the whole, of those tracts is covered, with settlers, or actual occupants, who claim title, and refuse to exhibit their deeds, and to give any information in what manner they derive title. That Samuel and John Franklin, as executors, some time between the years 1790 and 1795, offered these tracts, or so much as remained unsold, for the original price given for them by the testator, being about 5,000 dollars; and-, in particular, offered them for sale to James Duane, late of the city of JVezo- York, who refused to purchase them at that price, and that Samuel Franklin offered them to the defendant Samuel Osgood for that sum, who refused to purchase at that price, thinking it too high, and beyond the just value of the land, though he supposed the title to be good; and that the said Samuel and John could not procure the sum demanded by them; that the defendants could not ascertain that the original grantors had any title to those tracts, and all that they could ascertain was, that they were purchased by the testator, at public auction, about the times when the deeds bear date ; that the executors of Samuel Franklin, on application for that purpose, gave no information, but said that they knew nothing about the subject, and had no deed or papers relating to it; that Samuel and John Franklin, or their testator, never had any actual possession of the said three tracts ; and that, according to the best of the information and belief of the defendants, the grantors never had any possession; and the defendants being unable, after diligent inquiry and examination, to discover any title in the grantors, or any thing to show that they had title, concluded, and believed, that they never had any right or title to the lands,
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or, if they ever had, that the muniments and evidence thereof had been wholly lost, which opinion and belief they entertained at the time of the sale and conveyances herein after mentioned, and they still believe the same to have been correct; that the whole of the said tracts were settled by persons who had been in possession for different periods, from nineteen to twenty-five years, and upwards, claiming title to the parts which they hold ; and the defendants said, that a great part has been lost by the adverse possession of the tenants, which was the real belief of the defendants at the time of the salé hereafter mentioned, and was still their belief; that they received from the executors of Samuel Franklin, a deed from John Brandon to Walter Franklin, dated the 4th of July, 1771, for an island in Lake George, containing 100 acres; and another deed from Joseph Fairlie, dated the 4th of February, 1771, for 200 acres on a neck of land on Lake George ; that if the title to those parcels were good, the land was poor, and not worth more than 300 dollars ; that they know nothing of any land in Queensbury, in the county of Washington, belonging to the estate" of Walter Franklin ; that they received from the executors of Samuel Franklin a deed to Walter Franklin, for 2,363 acres of land on the Susquehannah, in 12 lots, which land is rough and of no great value, and some of the settlers claim title by possession ; also deeds for lands in the state of Vermont, in Hillsborough, Reading and Holton, being 11,000 acres in the whole ; a deed for nine rights in Cavendish, and a deed for 14 rights in Draper, in the same state ; that several of the titles were under the state of JVcrc- York, and were lost when Vermont became an independent state ; that a considerable part of the lands has been sold for taxes, or lost by adverse possession, and for these causes, according to the best information and belief of the defendants, the title to all the lands in Vermont had become entirely lost and extinguished, excepting about 2000 acres in Cavendish, which was mountainous, and of little value, and the settlers on which dispute the title of Walter Franklin; that, to the best of their knowledge and belief, there were no other lands belonging to the estate of the testator, and they were satisfied that there was no land of his in the county of Greene. The facts abo ve stated, they said, were all the information they could obtain respecting the residuary real estate of the testator, but they considered the three tracts of land first mentioned as the prin
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eipal, and by far the most valuable part. The defendants further said, that Samuel and John Franklin did not, while they, or one of them, were acting executors, take any care whatever of the lands composing the residue of the real estate of the testator, Or take any measures to preserve the title, or to obtain or defend the possession ; that their only acts were sales and dispositions of sundry parts thereof, made to persons who came to the city of New- York, and applied to them for that purpose, and the payment of some taxes, in a few instances ; that during a period of more than 27 years, during which they jointly, or Samuel alone, were acting executors, the lands were left exposed to intruders and settlers, were not in the possession or actual care of any person, on behalf of the estate, and became covered with settlers, or actual occupants, commonly called Squatters, all of whom claimed title to the lands which they occupied, and many of whom had probably acquired a good title, by lapse of time and length of possession ; and the defendants expressly alleged, and charged, that the largest and most consider-able and valuable parts of the lands had been lost, and the title extinguished, by the gross negligence of Samuel and John Franlclin ; and they said, that they understood, and believed, that the whole, or a large part, of the lands situate in this state was subject to the payment of quit rents, of which large arrears were due. The defendants further said, that when they had obtained all the information in their power respecting the lands, and that no part could be recovered without litigation and expense, they considered and resolved, that it would be the most prudent course for them, and the most beneficial for the estate, to sell the whole residue of the real estate in a mass, if they could obtain a fair and reasonable price for the same; and the defendants so being of opinion, and believing that it would be. most proper for them, and most beneficial for all parties interested, to sell the same together, also thought it expedient that the same should be sold as soon as might be, to prevent the injurious consequences of farther delays ; and they were also desirous to discharge themselves wholly of the trust, and believed that it would be for the advantage of all concerned, that the unsettled affairs of the estate should be closed with all convenient expedition, and, for these reasons, proceeded to offer the residue of the real estate for sale, and about the 1st of June) 1808, agreed to sell the same to Dewitt Clinton and John L.
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Norton ; that on or about the 11th of June, 1808, in virtue of the power conferred upon the executors of Walter Franklin, they executed two deeds in fee, one to Norton, for two third .parts of all the residue of the lands and real estate of Walter Franklin, not before disposed of, and the other to Dewiti Clinton, for one third part of the same ; in the deed to Clinton, one third part of the sum of 25,000 dollars, and in that to Norton, two thirds of the same, being expressed as the consideration respectively, and that the whole of the consideration was paid, in cash, by Norton and Clinton, at the time of executing the deeds. The defendants, fully and absolutely, denied all fraud or secret trust in the sale.
The answer of De Witt Clinton, filed 26th September, 1809, to the cross bill, stated, that all the title-deeds, &c. did not go into the hands of Osgood and wife : that the deeds from the original patentees to Peter Dubois, through whom the title to the lands in Cherry Valley was derived to Waller Franklin, never went into the hands of Osgood and wife, the same being supposed to be lost, until the defendant recently discovered them in the hands of William North, Esq. which supposed loss tended very materially, in the estimation of the defendant, to diminish the value of the lands. He then stated, that in the spring of 1808, Norton applied to him to be concerned in the purchase of the residuary estate of Walter Franklin, at the price of 30,000 dollars, which the defendant thought so high that he would have no concern in it; that some time after, he was informed, that it might be purchased for 25,000 dollars, and was offered an interest, and became purchaser with Norton, and their deeds were dated the 11th June, 1808. The answer denied any fraud, and stated,' that under the circumstances, the property was not worth more than 25,000 dollars, and»that a larger sum could not then have, been obtained, and that the defendant, hearing that Osgood was desirous to rescind the bargain, offered to give it up, but that Osgood refused. The answer further stated, that the defendant believed, and had understood it to be the opinion of counsel, that Mary Osgood was authorized to sell, as surviving executrix, and that the sale by Osgood and wife was valid, but that if the court should consider her as' unauthorized, it would confirm the sale, if found to be fair, bona fide, and for an adequate consideration, and that it would decree the plaintiffs, or those authorized, to execute conveyances to
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him and Norton. It stated, that the only tracts of much value, lie in Sharon, Schoharie county, Canajoharie, Montgomery county, and Cherry Valley, Otsego county; but what portion was in each the defendant did not know : that these lands are commonly called Cherry Valley lands, and were part of the patents to Philip Livingslan and others, and to Frederick Young and others, conveyed by Peter Dubois and his trustees, to Walter Franklin ; the first of which tracts, in Livingston’s patent, contained'about 3,800 acres ; the second contained 4,400 acres, or thereabouts, and the third, 4,600 acres, both in Young’s patent i that these tracts lay in a hilly, rough country, and the soil was not of the first quality, but the country was considerably settled : that the defendant had understoqd, that part of those lots was sold by Walter Franklin ; that the person in possession of lots 4, 7,12,14, of about 400 acres each, claimed, under one Samuel Hake, who was said to derive his title from W. Franklin, but the defendant did not know whether the claim was good: that he had understood that W. Franklin conveyed 160 acres to one Campbell, 128 to one Foster, and 400 to Dionysius and John Miller, and the persons in possession claimed, under him, adversely to the right of the defendant and Norton : that the defendant had understood, and did believe, that Samuel Franklin and his agents, authorized settlers to occupy the lands without rent, and promised to pay for the improvements, if they should not become purchasers, which improvident and unauthorized arrangement, had diminished the value to the defendant and Norton, as some occupants claimed high compensation therefor, or a conveyance, at the value when they entered upon it: that the defendant had understood, that a destruction of the timber had diminished the value: that he had understood and believed, that almost all the lands were held adversely to him and JVbrion, as deriving title from Osgood and wife : that he and Norton had been obliged to institute suits for the recovery ofthé possession of a large portion of these three tracts, the result of which he could not foresee, and •that from his imperfect knowledge, he could not tell the value of the part of the three tracts conveyed to them. The defendant then stated his knowledge, in relation to the other lands of W. Franklin, conveyed to him and Norton, of which it is unnecessary to give a detail; it, however, amounted to this, that the lands were, in general, either of little value, or the title bad or doubtful, The defendant stated, that he had, understood it to
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be the opinion of eminent counsel, that Mary Osgood was entitled to her dower, in all the real estate of which Walter Franklin died seised, notwithstanding the specific devises in his will: that she had actually insisted on her right, which had diminished the value of the said residue, and increased the difficulty of forming a correct opinion of its value, and that no part of the residue of Walter Franklin’s personal estate Was included in the purchase of the defendant and Norton. The answer of Norton was substantially the same as that of Clinton.
Both causes being at issue, testimony was taken, under an agreement, that the depositions might be used in both ; and a release of dower of Mary Osgood, was given in evidence, dated the 11th May, 1786, whereby she released to John, Thomas and Samuel Franklin, executors of Walter Franklin, all her right, title, and claim of dower to the estate of the said Walter, except such parts thereof, as were situate in the city of New- York, and on Nassau Island, in the state of New-York.
William T. Robinson, testified, that about December, 1806, in conversation with Dewitt Clinton, about the lands of W. Franklin, Clinton told him, that they were worth 100,000 dollars ; that there were numerous settlements on and near them, and eligible spots for public buildings, soon to be occupied for such purpose, which remarks, the deponent, a few days after, mentioned to Osgood. Another witness stated, that he was at Cherry Valley, in July, 1808, and saw Norton there, who was then surveying the lands, and said that he would not take 25 dollars per acre, and that he should not be obliged to bring many ejectments. Several witnesses, being persons living near the Cherry Valley lands, deposed, that in their opinion, these lands were worth from 10 to 15 dollars per acre, in the year 1808. It was testified, that some of the land, lying on the turnpike road, was sold by the agent of Clinton and Norton, in 1809, for 15 dollars : that in 1786, Col. Corsa, who was the agent of the executors of Walter Franklin, left a paper at Cherry Valley, inviting settlers to go on the lands, and if the price could not be agreed for, then, that the improvements should be appraised, and paid for accordingly : that many of the settlers were willing to purchase, if they were satisfied as to the title of Clinton and Norton, but others refused to acknowledge any title in Waller Franklin, or Clinton and Norton, and that in 1808, Clinton and Norton said that their title was good.
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John Lawrence, a witness for the defendants, testified, that some years ago, he passed through the lands in Cherry Valley, and was at the house of one of the settlers, who said, that they had gone on the lands under some agreement with the executors of W. Franklin, but no title had been given them. That afterwards he was asked by Samuel Osgood, what he would give for these lands, and whether he would give 25,000 dollars; and that the witness told him, that, considering all circumstances, he would not give that sum in cash, for there might be trouble with the settlers.
Another witness testified, that in 1786, Colonel Isaac Corsa was at Cherry Valley, and said that he was authorized to sell or lease the lands of W. Franklin, and left a paper containing the numbers of the lots and quantities, and inviting persons to settle on the lands, and that if the lands were sold to any other persons, the settlers should be paid for their improvements, the value thereof to be ascertained by two persons mutually chosen fey the parties; the witness had lost the original paper and had no copy : that fifty or sixty persons, in consequence, settled on the lands, in expectation that the terms of settlement so held out would be fulfilled, and who claim compensation for their improvements. These terms were, afterwards, recognized in a letter of Samuel Franklin, written to some of the settlers the 25th June, 1791 ; and again, the 27th November, 1793, John and Samuel Franklin gave a writing to the same effect, saying, that the settlers should have a preference as purchasers or lessees. Samuel Campbell proved the agency of Colonel Corsa, by the acknowledgments of Samuel Franklin, who, with the other executor, in 1791, conveyed to the witness 150 acres at 2 dollars per acre.
Jabez D. Hammond, who was agent for Clinton and Norton, deposed, that in 1808, all the settlers, except a few individuals, refused to attorn to Clinton and Norton; some of them denied their title, and others relied on their own adverse possession, and all refused to give up possession, unless paid for their improvements according to the terms offered by Corsa. That several suits were brought and were still pending: that some of the settlers sold their improvements, for from nine to twelve dollars per acre; that the value of their improvements was, at least, one half the present value of the lands, and that under these embarrassments, the value of the land was nominal
p. 544
only: that the timber had been much wasted: that the average value of the lands in June, 1808, was not more than two dollars and fifty cents: that the whole quantity of the Cherry Valley lands, claimed by Clinton and Norton, was about 12,000 acres, *■ x j besides four lots which had been sold by Samuel Hake, and for which Clinton and Norton had brought suits, which were still pending; if these lots were included, the whole would be about 13,000 acres. He stated that the tenants generally refused to acknowledge the title of Clinton and Norton; that the timber had been wasted, and that the compensation claimed for improvements, in general,- exceeded the price of the land.
S. Hiker deposed that 1,900 acres of land lying in Belvidere. patent, in Ostego county, had been sold in 1809, at auction, in the city of New-York, at two dollars and fifty cents per acre, and, on being put up a second time, brought only twro dollars per acre. It also appeared in evidence, that in the lifetime of1 Samuel Franklin, in or about the year 1799, a suit in chancery had been commenced by the executors of Walter Franklin, against the trustees, or the surviving trustees of Peter Dubois, for the recovery of the title deeds of the residuary real estate of Walter Franklin, in which suit several of the title deeds had been brought into court, and were by a decree of the court delivered to Samuel Franklin ; but that the deed or deeds for the Cherry Valley lands were not among those obtained by that suit.
In consequence of the deaths of parties, among whom were Samuel Osgood and wife, the cross suit was, also, at three different times, revived against their representatives, the last bill of revivor and supplement being exhibited about the 1st December, 1814. It stated, that after the residuary estate of 'Walter Franklin had been sold to Clinton and Norton, they had sold certain parts thereof, amounting£to more than 110,000 dollars, which had been paid to them partly in money, and partly secured by bonds and mortgages, bearing interest at seven per cent; that they then held a large and valuable part of the residuary estate unsold, and, the plaintiffs, in and by their bill, offered to confirm the sale, on receiving their portions of the purchase money.
In the several answers of Norton and wife, and of Clinton and wife, filed in September, 1815, they said that they did not believe that Clinton and Norton had sold of the residuary estate,
p. 545The first question arising, in these cases, relates to the authority of Mrs. Osgood to sell. The power given to the executors, by the will of Walter Franklin, conferred on them a mere authority to sell andinvested them with no estate in the land. It was, therefore, what is technically called a naked power, a quality of which is, that it admits of no survivorship.. It must be taken literally and strictly; must be executed by all the persons in whom it is reposed ; and if any one of them becomes incapacitated to act, it can never be performed at all. If a man devises that his two executors shall sell his land, if one of them die, the survivor shall not sell it; but if he had devised his lands to his executors to be sold, there the survivor shall sell it.[52] It is immaterial, in this in- , , , , , , , stance, whether the interest in the land passed to the devisees 1 of Walter Franklin, or descended to his heirs ;[53] it is clear that
parcels, amounting to more than 110,000 dollars, but of this they could not speak with any certainty, as they had not received any recent accounts from their agents ; and they admitted that they had sold certain parts, and retained certain parts thereof.
The causes came on to be heard in the court below, in September term, 1815, on the pleadings and proofs; and it appearing to the chancellor that the sale and conveyance of the residuary estate to Clinton and Norton was not fraudulent, and that Samuel Osgood and Mary, his wife, in right of the said Mary, as surviving executrix of the last will and testament of Walter Franklin, deceased, had competent power to make the same, it was decreed, that the bill in the cross cause of Abraham Franklin, John Franklin, Thomas Franklin, and others, as against the defendants, Be Witt Clinton and Maria, his wife, and John L. Norton, and Sarah, his wife, be dismissed, with costs to be taxed. The other parts of the decree related to the matters of account, which were ordered to be referred to a master, reserving the question of costs, (except as before decreed,) and all further directions, till the coming in of the master’s report. From this decree the defendants in the original suit, and the plaintiffs in the cross suit, appealed, and the cause coming on to argument in this court, the Chancellor assigned his reasons for the decree; for which, see 2 Johns. Ch. Rep. p. 1.
H. Bleecker, for the appellants.
p. 546the executors had no interest. They were barely trustees for a special purpose, and among such there could be no survivorship.[52] In the case of Lancaster v. Thornton,[53] the testator devised his leasehold estate to his executors, in trust for the payment of debts, legacies and funeral expenses, and then devised that his executors should and might absolutely sell, mortgage, or other» w'se dispose of his freehold estate, for the payment of such of debts, &c., as his leasehold estate should not be sufficient to pay and discharge. It was held, that no interest in the freehold estate passed to the executors, and Lord Mansfield says, that the testator showed, by the expression that he had used, that-he"knew the distinction between the devise of an estate to them, and giving them only a power to sell. In like manner, Walter Franklin, by the eighth clause of his will, has actually given to his executors a house and lot for certain trusts; thus clearly showing, that he also understood the distinction. Whatever interest the executors may have as devisees of the residuary estate, is not an interest to be coupled with the authority ; they take it in a character distinct from that of executors ; it is intended for their own benefit, and not to be held in trust for others. “ It is not a power with interest in the executors,” says the present Chancellor, in the case of Bergen and another v. Bennet,[47] “ because they may derive a personal benefit from the devise; for a trust will survive, though no way beneficial to the trustee ; it is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question ; and when an executor, guardian, or other trustee, is invested with the rents and profits of land, for sale, or for the use of another, it is still an authority coupled with an interest, and survives.” There can be no survivorship where there is no joint tenancy; and here was no interest which could be held jointly. Nor does the authority to lease, and receive the rents, give the executors an interest; this was intended merely for the purpose of distribution, and gave them no benefit in their character of executors. The power was given them for the advantage of those beneficially interested, and they cannot destroy it to their injury. Neither did the charging the land with the payment of debts, confer an interest, which could be extended to authorize the sale to Clinton and Morton, for the debts were all paid before that sale took place. Their power to sell was vested in them, in a dif
p. 547ferent capacity from that of executors : they were to act therein as trustees, and no interest which they possessed in the one right, could be connected with the power which they held in the other. It was given to a major part of the executors who might act. This clearly shows that it was the intention of the testator to submit the propriety of. any disposition of his property to the judgment of the whole, leaving the determination to the majority or their representatives ; if, then, one of the executors may alien the estate without the concurrence of the heirs of the other acting executors, the design of the testator is frustrated. It would be to allow one person to exercise an authority which he has confided to the discretion of several. His honour the Chancellor rests his decision, in part, on the ground, that the executors had ani Merest in the residuum. This position has already been alluded to and answered. Their personal interest extended but to part: that is not sufficient. It must be an interest co extensive with the power; and, for the same reason, the power to lease was not sufficient to clothe them with the necessary interest. The cases referred to by his honour, to show that an equitable interest is enough, do not warrant the conclusion. In Hearle v. Greenbank,[52] the question was, whether an infant could exercise a power of disposing of her own estate : and in Bergen v. Bennet,[53] the point was, whother a power to sell, contained in a mortgage, expired on the death of the mortgagor. It is not correct, as stated by the Chancellor, on the authority of Eyre v. Countess of Shaftesbury,[47] that a testamentary guardian may lease ; a guardian in socage only has that power.[48] Again ; it was urged by the Chancellor, that here was a trust charged upon the executors, which would not be allowed to become extinct by the death of a -trustee.! This principle, however, only governs where the ccstuy que trust himself applies to have the trust carried into effect, and not where it is to be executed against his wishes. Barnes5 case,[42] relied on by his honour, is clearly against law ; it is a cisión, that a power to sell, coupled with no interest, survived: yet the Chancellor himself admits the doctrine of the common law, as stated by Coke, which, notwithstanding the observations of Mr. Hargrave,[43] remains unshaken : besides, in that case, the power was not given to the executors, until after the death the widow of the testator. The distinction between a devise that executors should sell the land, and a devise of land to
p. 548executors to be sold, still continues part of the law, although it may, in one instance,[52] have been over-ruled : it was fully recognized by Lord Mansfield, in Lancaster v. Thornton, before cited. But admitting the trust to have survived, still a sale like the one in question ought never to be confirmed ; the near relationship between the vendors, who were trustees for the benefit of others, and the situation of the vendees themselves, in regard to their co-cestuy que trusts, whose rights they were compromising without their consent, and the gross inadequacy of the consideration, are conclusive against its validity. • Courts of equity regard, with the utmost jealousy, the conduct of trustees. They are not allowed to derive a direct benefit from the trust. They are permitted to do no net wherein they may, by possibility, derive a benefit; and the law sedulously guards against the operation of any motivé which could tempt them to a violation of their duty. Hence, a trustee is not allowed to be a purchaser of the trust estate ; the prohibition is absolute ; whether the sale be fair or fraudulent, is not a subject of inquiry; it may, in any case, be set a side. It is true, that the rule, until lately, has not been carried to this rigorous extent; but it is now fully settled, that a trustee shall not purchase.[53] A sale to his own children, must equally come within the rule; it is equally in violation of those principles of justice, policy and morality, on which the rule was established. The benefit to Mrs. Osgood’s daughters was immense, and vastly greater than if the sale had been to a stranger. What though she aliened her own right, she did but anticipate the gift which she intended to make to her daughters: her maternal feelings prompted her to subserve their advantage, and she was willing to sacrifice a temporary benefit to herself, for the satisfaction of seeing them invested with splendour and wealth. The sale to the husbands of the daughters, was more to their advantage, than if it had been to strangers: in the one case, they would have been entitled merely to a portion of the purchase money, which, as personal property, at once belonged to them ; in the other case, they are,- at all events, entitled to their right of dower. This, independent of all other considerations, furnished a motive for abusing the trust. If it were a motive at all, it matters not whether it were powerful or feeble. “ The distinction of a weaker temptation is too thin to form a safe rule of justice.”[47] There was a strong and obvious J * 3
p. 549temptation to abuse the trust, but an inflexible rule of law intervenes, and avoids the whole transaction. As a trustee cannot purchase for himself, so he cannot buy for his relations, or for a stranger, or employ a third person to make the bargain. The civil law prohibited a guardian, either by himself, or by the interposition of an agent, to purchase the property of his ward : he could not be at once buyer and seller ; and if he made the sale to his own children, the law regarded it as a sale to himself.[52] Devoe v. Fanning,[53] decided by the Chancellor, was a strong case to the same point. There the sale was made by the husband to a third person, in trust for his wife, and this was done to raise a legacy due to her ; but the sale was not supported, because the temptation was too great, and he was bound to act for the benefit of others as well as of Ins wife. There was no pretence of fraud, nor of inadequacy of price. Besides, the purchasers here were co-cestuy que trusts, and the sale was void on that account. The trustee is the agent of the cestuy que trusts, and they are to be presumed to have more information as to the state of the property. He is forbidden to purchase for himself or for a stranger, that he may not abuse the knowledge which he has acquired : nor shall one of the principals, one of the cestuy que trusts, having an interest, and consequently an interest in obtaining information, be permitted to avail himself of it, and become the purchaser, in exclusion of the others. Neither the assignee, nor the creditor of a bankrupt, nor their solicitor, has been allowed to become a purchaser.[47] It appears, upon the facts and pleadings, that the purchasers were co-cestuy que trusts, and, therefore, this question is properly before this court, although not decided upon bj the court below. There was either fraud, or gross and culpable negligence, on the part of the trustees. They were bound to make inquiry respecting the value of the land ; to gain all possible knowledge, and to exercise more circumspection than even in the management of their own affairs : nor were they authorized to sell, until they had examined into the state of the property.[48] [The counsel entered into an examination of the pleadings and proofs, to show that there was a great and glaring inadequacy of price.] There is this distinction between the present case, and those upon which the Chancellor relied, that they were questions between vendor and vendee, and, therefore, not so open to the presumption of fraud as the present case. The dower of Mrs.
p. 550Osgood had been released, and therefore, could not tend to diminish the value of the land. It is palpable, from all the circumstances, that the trustees either were ignorant, and acted without due inquiry, or were imposed upon, or that there was collusion between them and the purchasers; and the evidence fully warranted the conclusion, that the trust was assumed by Mrs. Osgood, for the express purpose of making the sale. In Chesterfield v. Jansen,[52] Lord Hardwicke says, that fraud may be collected or inferred from the nature of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement; and that particular persons in contracts shall not only transact, bona fide, between themselves, but shall not transact, mala fide, in respect of other persons, who stand in such a relation to cither, as to be affected by the contract or the consequences of it. A conveyance from persons, ignorant of their rights, has been set aside, although there was no actual fraud or imposition.[53] [The following cases were also cited by the counsel, as to the questions of fraud and inadequacy of price. Rogers v. Cruger, 7 Johns. Rep. 557 . 3 Eq. Cas. Abr. 741. 1 Bro. Ch. Cas. 9. 2 Bro. Ch. Cas. 175. 177. n. 10 Ves. 292.]
Riggs and Wells,
for the respondents, Clinton and Norton. Mrs. Osgood had power to sell the land. Had it been a mere naked power, which, it is admitted, could not have survived, there would have been no necessity for coming into a court of equity, and the cestuy que trusts should have brought their ac*tion of ejectment at law. This court has no jurisdiction'of the case, on (he ground of a mere invalid execution of the power; but if the power were accompanied with a trust, it was a case proper for chancery, and the law adopts the rule established in equity. Where the power is virtute officii, it always survives, and the trust survives with it; and in this case, the estate is given to the executors, quasi executors, and must therefore go to the survivor :[47] for the office of executors is equivalent to a joint eS(ate at [aWi and is governed by the same rules as to survivor-ship. In Zebach's lessee v. Smith,[48] a power to sell, for the purpose of paying the testator’s debts, was given to three executors, and no provision made by the will for its being executed by a less number; two of the executors refused to act, and it was held, that a sale by the one acting executor was valid: and the judge who delivered the opinion of the court, says, that it is
p. 551
admitted, on all hands, that if the authority to sell was given to the executors virtute officii, a surviving executor might sell. The question between Powell[52] and Hargrave,[53] does not touch the present case: Here there was a trust accompanying the power, and Powell does not deny the rule, that a trust shall never fail for want of a trustee. A court of equity will follow the land into whosesoever hands it may go, and may make the owner a trustee, or create a trustee to prevent the trust from failing.[47] The intention of the testator, Walter Franklin, is clear, and the rule is well settled, in the construction of wills, that the intention must govern. In Jackson v. Jansen,[48] the court says, “ the intent is much regarded in the construction oí these powers, and from several of the cases, it would seem, that the power was construed with greater or less latitude, as would best meet this intent.” Unless' the power be considered as surviving, the intent cannot be carried into effect. The residuary property was to be turned into money for distribution, and this could not be done without survivorship; and the cases show, that a power to sell, for the purpose of paying debts or making distribution, is a power virtute officii, that being requisite to effectuate the intention.[41] The case of Lancaster v. Thornton,[42] cited by the counsel for the appellants, has no application ; for the question there did not relate to the execution of a power, but whether a conditional fee vested in the executors under the devise. The power in the will of Walter Franklin is not given, nominatim, toA.B. and C. but to his executors; and so if it were a naked power, being annexed to the office, it survives.
But it was a power coupled with an interest, both legal and equitable, either of which is sufficient. 1. There was a legal interest. The power to lease gave the executors an interest in the rents: the estate was directed to be kept on rent for the general benefit, until distribution, and the executors themselves were entitled to one half of the profits. The case of Eyre v. Countess of Shaftesbury,[43] shows, that a testamentary guardianship survives ; that it is coupled with an interest, and that the guardian may lease. The bare power of leasing gives him an interest : nor is this contradicted by the case of Roe v. Hodgson,[44] cited by the counsel for the appellants. In that case the guardian leased for 21 years, and the question was, whether the lease were void or voidable. The general expressions there used would apply to a guardian in socage, as well as to a testa
p. 552mentary guardian, and there can be no doubt, but that a guardian in socage may lease; so that cannot be considered as the question intended to be decided, but that a testamentary guardian cannot lease for a longer period than until the ward comes of age. In addition to the leasing power, the executors of Walter Franklin had themselves a fee in the property, as four of his residuary devisees. “ When power is given to a person who derives, under the instrument creating the power, or otherwise, a present or future interest in the land, it is then a power relating to the land.”[52] 2. There was an equitable interest. The executors were entitled to a moiety of the proceeds they had an interest to superintend the land, and to receive and distribute the rents and profits, and this was sufficient.[53] The power was well executed in equity, if not at law: for in equity, the executors would be considered as trustees, of which character survivorship is a necessary incident, and they might have been compelled by the devisees to sell. A court of equity looks to the object intended, and enforces its accomplishment.
The sale to Clinton and Norton was bona fide and valid. The bill claims relief on account of fraud in fact, and fraud in law, arising from inadequacy of price. Fraud in fact is denied by the answer, and there is no shadow of proof to repel the denial. Fraud must be proved, and is never to be presumed.[47] There is not a case to be found which adjudges a contract or sale fraudulent, because made to relations ;[48] and that is not a circumstance to be laid hold of to prevent a specific performance. There is no reason to believe that Mrs. Osgood would have favoured the wives of Clinton and Norton more than her other children ; and she certainly could have had no inducement to sell the land for less than its value. The appellants come too late with their objection, futile as it is, that the purchasers were their co-cestuy que trusts. The question was not moved before the court below, and therefore cannot be argued here".[41] That point was settled in this court, in the case of Sands v. Hildreth.[42] Besides, there is no such rule as that contended for on the part of the appellants; nor can relief on that account be granted them under the prayer in their bill. Where one co-cestuy que trust purchases the trust estate, he, at the utmost, can only be deemed to take it subject to the trust; but where the sale is pursuant to, and in fulfilment of, the trust, the purchaser takes the estate unincumbered by the trust. How far the trustees may
p. 553
be accountable for their negligence is no concern of the - purchasers, and does not affect the validity of the sale : the breach of contract merely creates a simple contract debt, as against the trustee alone.[52] If relief cannot be granted on any of the special grounds stated in the appellants’ bill, it cannot be given them under the general prayer, which is only to be resorted to when it comes in aid of the special relief sought, and not when it is inconsistent with it.[53] The relief sought in this case is for fraud, and to that the appellants must be restricted. It is true, as has been stated by the counsel for the appellants, that the assignees of a bankrupt are prohibited from becoming purchasers,! but the prohibition has not been extended to the creditor of a bankrupt; and the reason for excluding a solicitor, is founded on the confidential relation between him and his client. A trustee, however, may purchase from the cestuy que trust,[48] and the rule to be equitable must work both ways.
Since, then, Mrs. Osgood had full power to convey, and no actual fraud has been shown, and since the question of breach of trust does not concern the respondents, Clinton and Norton, the remaining point is, whether there was fraud by intendment and implication of law; and this is the only question arising in the cause which can admit of discussion. The salé is impeached on three grounds : 1. The relationship between the parties, which, per se, can form no objection, and has already been refuted. 2. Inadequacy of price; and, 3. The knowledge which the purchasers, before the sale, possessed of the value of the land. That mere inadequacy of price is insufficient to induce the court to set aside the sale is shown by the whole current of authority ;[41] it must be an inadequacy so gross and shocking, as to carry upon the very face of it, conclusive evidence of actual fraud. Inadequacy of price is not sufficient to prevent a decree foy a specific performance;[42] still less to set aside an executed contract. There must, in addition, have been some imposition practised upon Mrs. Osgood, some undue advantage taken of her necessities and situation, by some person standing in a peculiar relation of confidence and influence ;[43] but nothing of the kind has been shown. The case of Rogers v. Cruger, which has been cited by the cousel for the appellants, if applicable at all, is in confirmation of these positions.[44] It is there admitted that mere inadequacy is no ground for setting aside a contract. The proof of the value of the property lies
p. 554Upon the appellants, and they should have put the subject be yond a doubt; but there is no evidence that any person would have given more than was given by Clinton and Norton. The executors were not bound to sell in parcels ; the trust was well executed by selling in a mass. The property, besides, was incumbered with Mrs. Osgood’s claim of dower, which was never extinguished by the pretended release : it was a voluntary conveyance, and it was made to persons who had no previous interest in the land, and was, therefore, inoperative. Samuel Franklin, himself, considered it as unfairly obtained, and it was in fraud of Osgood’s marital rights. The quit rents were a further incumbrance; the title of Waller Franklin to the land was doubtful, and was denied by the settlers, and had it been unimpeachable, still Corsa’s contracts materially detracted from its value. It is not true, in point of fact, that Clinton knew the land to be worth the immense sum pretended on the other side. But, whatever knowledge he might have acquired, he was not bound to disclose; the parties were dealing at arms length, and there was no such confidential relationship between them, as could render it incumbent on the vendees to communicate their information.[52] There would have been nothing immoral in the suppression; refined notions of honour are not the criterion; the question is, whether there was fraud: besides, the adequacy or inadequacy of price is not to be referred to the present value of the land, but to its value under the then existing circumstances.[53] It has been rendered more beneficial by subsequent events, but that is an advantage to which the purchasers are fairly entitled. The worth of Corsa’s contracts must' be the rule for estimating its value; they were binding, and a specific performance of them could have been enforced, although Corsa may have had no written authority to make the arrangement: his bargain was to compensate the settlers for their improvements; and a power even to demise land may be given without writing.[47] No residuary legatee was ever permitted to pursue the subject into the hands of a purchaser; he must look to the executors, who alone are responsible.[48] [The counsel, in the course of their arguments, entered into a long and minute examination of the testimony^ which, it is necessary wholly to omit.] for the representatives of Osgood and wife. The allegation of fraud is denied in the an
S. Jones, jun. and T. A. Emmet,
p. 555swers, and is unsupported by any evidence. Mrs. Osgood acted under the directions of her husband ; they had children, and Osgood would never, had the land been worth as much as represented, have consented to give away, to the value of 15 or 20,000 dollars, his own or his wife’s property. The bill chai'ges that Mrs. Osgood’s eighth was to be reconveyed to her: this allegation is likewise destitute of foundation. It is said by Mr. J. Van Ness, in Rogers v. Cruger,[52] that “ fraud is never to be presumed : It is always to be made out, either by positive proof, or by the disclosure of such facts and circumstances as are irreconcilable with good faith, and the principles of morality. Many things may be illiberal, reprehensible, and, perhaps, even dishonourable, which will not, in legal signification, be deemed fraudulent, so as to avoid a contract.” Negligence, no more than fraud, can be presumed, and will be excused by the same circumstances which rebut the imputation of fraud. [As to the duty of the executors the following authorities were cited: Anst. 219. 5 Ves. 443. 3Atk. 444. 1 Vern. 144. 13 Ves. 410. 591. 2 Madd. Chan. 114. 121.] As inadequacy of price is the ground on which the appellants place their greatest reliance, it is necessary for them to show that .the title was perfect, and what the soil itself was intrinsically worth: for the goodness of the title, and the excellence of the soil, must be the criteria of the value. The witnesses, in their calculations of the value, evidently speak in relation to an unimpeachable title ; they are, therefore, to be disregarded. In estimating the worth of the land, all the then existing circumstances must be weighed and considered. It is fairly to be intended, too, that when Clinton, in 1806, said the lands were worth 100,000 dollars, he supposed the title to be perfect. Osgood' and wife took the management of the estate twenty-seven years after the death of Walter Franklin, and had every reason to presume that the previous acting executors had collected all the title deeds.. They had never been in actual possession, and were, therefore, bound to deduce a regular title from the original patentees. If the title deeds might have been easily found, why had not the former executors, during the long period of twenty-seven years, succeeded in procuring them ? Mrs. Osgood and her husband bad not the means to satisfy the claims for improvements, and pay the costs of suits; the statute of limitations was soon to become a bar to their
p. 556rights; it was necessary to sell to a person whSse wealth might enable him to assert his title, and had they not sold, they would have been justly chargeable with’ negligence and breach of trust. No other persons than those who actually did purchase would have become purchasers. Had the land been put up at auction, who would have bid, without requiring the title to be exhibited ? In addition to all these embarrassments, Mrs, Osgood had a life estate in one-third of the whole property. The release w'hich she executed was totally void: the releasees had no antecedent interest in the land ; it was made but seven days before her marriage with Osgood, and wag in fraud of his marital rights.[52] It is denied that the power survived tojjMrs. Osgood: the feeMescended to the heirs, subject only to be defeated by a sale by the executors, The power was vested in such of the executors as acted : Mrs. Osgpod elected not to act, and, of course, renounced the legacy, and could not after-wards, when the other executors had collected money due to, and paid the debts of, the éstate, for the first time, assume the office, and come in, at so late a period, to take the legacy. Where a power is given to a plurality of persons, they may act as long as a plurality continues to exist. In this case the tes* tator gave the power to his executors, or the major part who plight act, and to their heirs or executors; and, unless a major part of his executors did join in the execution, the power could hot be executed. A power coupled with a trust does not survive. That is a new doctrine, unsupported by any authority ; but if it does, yet, in this case, the power became extinct on the death of Mrs. Wistar, in 1804. It must be executed in toto, or not at all; and after the death of Mrs. Wis- tar it could not be executed, as far as she was concerned. The Case of Jackson v. Jansen[53] is a full authority to this point. Where a power to sell is given, in order to pay debts or legacies, and no such debts or legacies exist, the power becomes naked, although it might have been deemed to be coupled with an interest had they existed. A sale to a co-cestuy que trust is void, as a consequence of the rule that a trustee cannot be pome a purchaser of the trust estate. [In support of this position the counsel cited the cases before referred to.] It is no objection to the relief sought on this ground that .it was not urged ijn the court below. The same law and the same facts are bes
E. Williams, in reply.
p. 557Platt. J. The sale to Clinton and Norton is attempted to be impeached on two grounds : First. That as surviving executrix under the will of Walter Franklin, Mrs. Osgood had no power to sell the real estate of the testator. Secondly. That the sale to Clinton and Norton was fraudulent ; and, therefore, void. 1. On the first point, it is clear that at common law a naked, power given to persons named as executors, to sell lands, would not survive. It is like a naked power of attorney, to do any other act, given to several persons jointly ; and, if one die, the power expires; for it is a delegation of power for private purposes, giv en generally to all the attorneys named in the power. The co-operation of all is necessary to satisfy the express terms of the grant; and fewer than all the attorneys do not represent their principal, (Co. Lit. 112. b. 113. a. 181. b. Shep. Touch, pi. 9. page 429. Powell On Dev. 292. 310.) . It is also well settled, that if the power to sell lands be coupled with an interest in the executors, or agents, so appointed to execute that trust, then, on the death of one or more of the executors, the survivor or survivors may lawfully execute the power. (Bergen v. Bennett. 1 Caines Cas. Er. 15. 3 Salk. 277. 3 Atk. 714. 2 P. Wms. 102.) There is also another class of cases which clearly show that where the terms made use of in creating the power, detached
fore this court as were before the court below, and whether the same arguments or reasons were produced there, as are urged here, is immaterial. In Wilkin v. Wilkin,[52] the Chancellor states this as the rule, “ that thtiugh the bill contain, as usual, a prayer for general relief, the plaintiffs may have other specific relief, provided it be consistent with the case made by the bill.” And in Beebe v. The Bank of New-York,[53] Mr. J. Thompson says, “ according to the course of chancery proceedings, a party is not confined to the particular relief asked for in the bill, but under the general prayer is entitled to such relief as the circumstances of the case may require. The reason of inserting the general prayer is, that if the party mistake the relief to which he is entitled, the court may afford him that to which he has a right.” [The counsel also examined the facts in relation to the question of fraud.]
p. 558from the other parts of the will, confer merely a naked power to sell; and, yet, the other provisions of the will evince a design in the testator that, at all events, the lands are to be sold, in order to satisfy the whole intent of the will, then, also, the power survives. In this latter case, it is not a naked power, in the sense of Lord Coke’s general rule, but is coupled with other trusts and duties which require the execution of the power to sell. (JBairne’s Case, Sir Wm. Jones’ Rep. 252. Cro. Car, 282. ^Powell on Dev. 297. 307. Hard. 419. Cro. Ch. 382. Cro. Eliz. 26. Sugdenon Powers, 141.) The case of lessee of Zebachv. Smith, 8?c. (3 Binney’s Rep. 69.) is very analogous to the case now before us. In that case, Zebach’s will contained the following clause : “ The executors, namely, George Wolf, Leonard Miller, and Godfrey Rohrer, shall be impowered to sell my lands. When my debts are paid, if any thing should remain, my wife shall keep two cows, &c.’’ Miller and Rohrer, two of the executors renounced, and Wolf, the sole surviving executor, conveyed, under that, power, the lands of the testator to his own son-in-law and another. It was attempted to defeat this sale, first, on the ground that it was a ■nakedpower, and did not survive; and, secondly, because the sale was fraudulent; being made to a son-in-law for an inadequate price, in old continental money, ¡&c. The court decided, that it was a power coupled with a trust, to be executed for the bepetit of others; that although the power was given in the plural number, and a single executor did not satisfy the literal expression of the will, yet, the power survived, and the conveyance, was deemed valid. From a careful examination of the authorities on these points, I am satisfied this case does not fall within the rule which governs naked powers ; on the contrary, this is a power coupled with interest, and connected with the execution of other trusts, which qualify and explain it. In this case, the persons appointed to sell were devisees of one half of the estate, and, therefore, had a certain and direct interest in the subject of the power ; and they had, also, as fexecutors, other trusts committed to them, the execution of which was connected with, and dependent upon, the execution of this power. If, then, the words used by the testator, in conferring this power, do not expressly, or by necessary implication, forbid the construction Of survivorship in Mrs. Os
p. 559good, she had a right, on general principles, to sell the residuary lands. If the testator had used merely these words, “ I give to my executors that may act, and to a major part of them, their heirs or executors, full power to sell my lands,” without any qualifying words, or dependent provisions in the will, I should have no doubt that the authority ought to be construed strictly; and, in such case, a single surviving executor could not sell, because, literally, a single executor would not satisfy the words, “ my executors that may act, and the major part of them.” Looking at the whole will, and construing this section, in connection with others, and in reference to all the provisions of that instrument, my mind is irresistibly led to the conclusion, that it best accords with the intention of the testator, that the power in this case should survive to the only remaining executor. ' This construction is founded on the general structure of the will, and the duties which it enjoins on the executors. One-eighth of the proceeds or avails of the residuary estate is given to Sarah Corsa, but, under such special limitations, that if we admit the power to have expired with the three executors, who are dead, then, the trust for her benefit can never be executed, unless a new trustee be substituted by the court of chancery ; and I am persuaded, that the testator did not inean that a stranger should be substituted in the place of one of the executors of his own choice. By a former clause of the will, the executors were directed “ to keep the estate on interest and on rents, as much as possible$” and Mrs. Corsa was, in no event, to have any portion of the land as devisee. She, (and her daughter after her death,) is entitled, under the will, to the interest of one-eighth of the residuary estate, and, of course, the testator’s bounty, as to her and her daughter, would be defeated, unless the lands were either sold or leased. If the executors, virtute officii, were to lease, (and that seems unquestionable,) it affords a strong presumption, that the power to sell, and the power to lease, were intended to be vested in the same hands, because, a different construction would introduce great disorder and confusion, arising from the exercise of conflicting powers by different persons over the same subject. If it be said, that the execution of the power to sell, on the death of a majority of the acting executors, devolved upon their
p. 560heirs or executors, that construction is liable to several objec> tions, and might produce consequences utterly inconsistent with the probable intention of the testator. First; it is probable that a leading motive in selecting persons to execute that trust, was, that they not only enjoyed the highest confidence of the testator, but that they had an interest in the estate to be sold, in common with the other devisees, which afforded a security for caution and circumspection in discharging that duty. The heirs and executors of the persons first empowered to sell, could not be known to the first testator, and they might be persons who had no interest in the estate to be sold. Samuel and John Franklin might have died insolvent, or they might havedevised their estates, as Walter Franklin did, in part, to persons who were not “ their heirs.” Secondly; it was manifestly, the intention of the testator,- and highly fit and convenient, in itself, that there should be but': one fund for distributing the avails of the whole estate, real and personal, which could not be, unless the office of executor, aneb that of trustee to sell, were united in the same person. That Mrs. Osgood has rightfully assumed the office'of executrix, after the death of Samuel Franklin, cannot be disputed. In seeking for the intention of the testator, on the point of survivorship, a strong inference arises, from an express provision in the will, that if his brothers, Thomas, John, and Samuel, did not waive their claim of being discharged from debts, which they might owe his estate, they should not be his executors ; plainly showing that the testator expressly contemplated an event, in which his widow would be sole executrix for all the purposes of the will. She was, in fact, the sole executrix, absolutely appointed. The brothers were appointed conditionally only. Suppose that contingency, in regard to the brothers, had happened i or that; from any cause, they had neither of them ever become an acting executor of this will, will it be contended,, that in that event, the power to sell the lands would have been extinct? Were Sarah Corsa and her daughter to lose the bounty of the testator, which could accrue only from that fund ? If the widow alone was not to sell, who could execute that power t For in the case I have stated, there could not be “ executors or
p. 561heirs of a major part of the executors that may actf according to the terms of this will. I know it may be said, that a trust shall not fail, for the want of a trustee ; and that the Chancellor could interpose and appoint a trustee for that purpose. But can it be believed, that the testator intended that his widow, in such event, should be superseded in the execution of the most impor-ant duty enjoined by the will, and that a stranger should be substituted in her place ? In limiting the power to the executors that may act, &c. their heirs or executors, the words, their heirs or executors,” are to be understood distribulively, as in all other analogous cases j that is, the heirs and executors of the longest liver. “ Their heirs and executorsdo not mean all the heirs and executors of all the acting executors of this will; but the heirs and executors of the longest liver. So that if Mrs. Osgood had died without exercising this power, it would have devolved upon her heirs or executors. Those words, their executors, &c. have re-, ceived a fixed and determined meaning; and are to be construed, as in the case of a bond to several persons, and “ their executors, administrators and assignsmeaning, undoubtedly, the executors, administrators and assigns of the sole surviving obligee. The power to sell is given, in this case, to the “ executors that may aci,v Sec. It is given to them as executors, and not in their individual names: and there can be no ground to contend, that the persons named in the will as executors, but not acting as such, could execute the power to sell. There may, no doubt, be cases where the persons appointed by a will, to sell lands, and also named as executors of the same will, may renpunce the executorship, and still legally execute the power to sell; (Powell on Dev, 294.) but not so4» this case ; for the will expressly restricts the power to the acting executors; thereby evincing the intent of the testator, that the duty of selling the land, and distributing that fund, or the interest of it, and the general duty of administering the personal estate, should be performed by the same persons. The injunctions in the will, to keep the estate on lease, and to sell real estate, have the same object in view, to wit, that the testator’s bounty might be dispensed, by his acting executors 5 and the
p. 562harmonious execution of the whole will requires, that those Powers should be vested in the same agents. It is important to consider, that the portion of the estate given to Mrs. Corsa, was a mere legacy of the interest of one-eighth of the residuary estate, personal as well as real. If this power had never been executed, Mrs. Corsa w'ould have utterly lost the testator’s bounty. She could, in no event, have the land itself, as devisee: and I think there can not be a doubt, that, at her suit, the court of chancery would have compelled the execution of this power. After the death of Mrs. Corsa, the will directs the executors to pay to her daughter, the one-eighth of the principal and interest of the residuary estate. It was not optional with the executors to sell or not; and all the provisions of the will manifest an intention, that, at all events, the lands should be sold; for, otherwise, the will could not be executed. The amount of the personal estate, as well as that of the real estate, was uncertain and contingent; and if the avails of these funds are to be placed in different hands, for distinct and separate distribution, there will be a clashing interference of rights and duties, that mars the plain and simple meaning of the testator.1 It may be said, that if the execution of the power'is not confined to a “ major part'’’ of the acting executors, then those important words, “ major part,” are rejected as senseless; and that the sound rule of construction requires, if possible, that no expressive words shall be rejected as surplusage. To this rule I subscribe; and 1 impute to those words, “ mayor part” of the acting executors, a very expressive meaning, consistent with my construction of the power. The testator clearly contemplated two distinct cases; the 6ne was, that all, or several of the executors appointed, might act; and in that event, he intended to authorize a “ major part” of them to sell lands ; and if he had not, in that case, expressly authorized a majority to- execute the power, there might exist , a serious doubt, whether the concurrence of all, would not have been necessary. In removing that doubt, the words “ major part” have an important meaning. But the testator also clearly contemplated another case, to wit, that the widow alone might execute the will; and then the words 6t major part” have no application.
p. 563'My opinion, therefore, is, that upon the death of Samuel Franklin, Mrs. Osgood rightfully assumed the office of executrix ; and that the power to sell the real estate legally devolved upon her, in connection with all the other duties enjoined by the will. 2. As to the second point in this cause, I have scrutinized the evidence with careful attention; and my mind has arrived at the satisfactory conclusion, that there is no evidence of either actual or constructive fraud, to impeach the conveyance from Mr. and Mrs. Osgood to Clinton and Norton. There is no doubt that inadequacy of price,per se, is no ground to set aside a conveyance; unless it be so gross and shocking as to be evidence of fraud. In judging of the adequacy of price, in this case, we must look at the condition and circumstances of the estate, at the time of the sale. Through the neglect and mismanagement of the former executors, the Cherry■ Valley lands, which form the fairest portion of the estate, were chiefly possessed by persons who either professed to hold adversely, or who claimed the benefit of a very onerous and imprudent agreement made with the settlers by Colonel Corsa, as agent for John and Samuel Franklin. An agreement which, if rigidly enforced by the tenants, would have essentially reduced the value of the estate, for the purposes required by the will. For instead of leasing or selling the lands, the former executors, by that unfortunate agreement, put it in the power of the occupants to set their own price for the purchase, or to demand prompt payment for their improvements, and thus Samuel Franklin, at his death, surrendered the estate to the surviving executrix, without any personal fund remaining, (except 347 dollars,) to redeem those lands, by paying for improvements. But another and more insuperable obstacle to an advantageous sale was, that the evidence of title to those lands was defective. The only reason or apology, why the former executors did not sell or lease these lands was, because they could not find an essential deed, on which the title of Walter Franklin depended. Under these circumstances, it became the duty of the surviving executrix to complete the settlement of the estate ; and for that purpose, it was indispensably necessary to sell the lands,
p. 564for the will, in regard to Mrs. Corsa, could not be executed without such -sale. What mode of sale, then, was most discreet, and best calculated to produce the largest price ? It has not been contended that the executrix was bound to sell in parcels; but it has been insisted, that instead of selling to her sons-in- law, at .private sale, she ought to have offered it to strangers, or sold it at auction. Under the peculiar embarrassments of the title, I incline to the belief, that a sale could not have been made to any other persons, or in any other mode, for a larger price than was actually given in this case. Suppose the lands had been offered for sale to a stranger, or at auction; as trustee, Mrs. Osgood could not be expected to warrant the title ; but she undoubtedly would have been required to exhibit the evidence of title: and if, on such inquiry, she had. disclosed the whole truth in regard to the title-deeds, and the agreement of Colonel Corsa, and the claims of the tenants, what person could have been found, at that day, to give 25,000 dollars for such a title ? It was an adventurous and hazardous speculation on the part of Clinton and Norton, and it is only by diligent and active exertions, by great prudence and address in affecting compromises with the tenants, and by expending large sums of money in litigation, that it has proved to them a profitable bargain. But to uphold the sale, and to excuse Mr. and Mrs. Osgood for the manner of executing this trust, it is riot necessary to show that the trustee acted with all the prudence and sagacity that might have been used. It is sufficient for the. buyers, that the purchase was bona fide, and for a valuable consideration on their part: and it is sufficient to justify Mr. and Mrs; Osgood, that the sale was without fraud, or supine negligence, on their part. Many other considerations arise upon the evidence, which repel the imputation of fraud in this transaction ; but I cannot deem it necessary to dwell longer upon the discussion. Whether there be any rule of law or equity, which forbids a ¿so-cesluy que trust from purchasing, in such a case, for his own exclusive benefit, is a question which does not arise upon the pleadings in this cause. The bill is not adapted for relief on that ground. It is presumed,> therefore, according to the opi-.mot! of the chancellor, that point was not raised for his decision
p. 565in the court below; and if so, it is well settled, that this court cannot regard it, on appeal. Bul as we permitted an argument, sub modo, on that point, I take occasion to observe, that I have not been able to perceive 7 1 any foundation in reason or authority for that objection. My opinion, therefore, is, that the decree be affirmed. Van Ness, J. and Yates, J. concurred. Spencer, J. being related to one of the defendants, did not hear the cause or give any opinion.
The conclusion to which I have arrived, on a careful examination of this case, renders it unnecessary for me to notice all the questions that were raised and discussed on the argument. I shall confine myself to that which relates to the authority of Mary Osgood, alone, as sole surviving executrix of Walter Franklin, deceased, to sell and convey the lands in question to Clinton and Not ton. The decision of this point depends upon the construction to be given to that clause in the will of Walter Franklin, under which the authority to sell is claimed.
The testator, after sundry specific devises and bequests, gives the whole residue of his estate to his wife, his two daughters, three brothers, and two sisters, each one eighth ; and appoints his wife, and three brothers, executors. Then comes the following clause: ‘‘I give to my executors that may act, and to the major part of them,, their heirs or executors, full power to sell any or all my real estate not already devised,’’ Sec. The plain and obvious meaning of this power, as well as the grammatical construction to be given to the words is, that the authority to sell is given, in the first place, to all the acting executors, and for the purpose of preventing any one of them from defeating a sale, he declares that a major part of them may sell. Still further, to uphold the power, and guard the sale, and prevent an improvident disposition of his property, he provides that in case of the death of any of his acting executors, their heirs or ea> ecutors shall be substituted as trustees in their places. No other interpretation, in my judgment, can be given to this power, without rejecting some words altogether, and rendering others useless, and without meaning. If so, Mrs. Osgood alone had no power to sell. On the death of the testator, Walter Frank
p. 566
lin, in the year 1780, two only of his executors, Samuel and John Franklin, qualified, and took upon themselves the execution of the will. After a lapse of twenty-seven years, and after the death of the two executors who had acted, Mrs, Osgood qualified as executrix, and, soon after, executed the deed to Clinton and Norton, who had married her two daughters, being two of the eight residuary devisees named in the will.
It is an incontrovertible rule, running through all the cases, on the construction of wills, that the intention of the testator is much regarded, and ought to have a controling influence in construing these powers; and that a greater or less latitude is given to them, for the purpose of carrying into execution such intention. This rule is noticed and recognized by the chancellor, in his opinion in this case. We find in the books great subtlety in many of the distinctions that have been attempted to be made, between what is called a naked power or authority, and a power coupled with an interest or trust. It is admitted, • &s a general rule, that with respect to the former, it must be executed by all to whom it is delegated. But where the authority is connected with an interest or trust, and is delegated to several, it does not become extinct by the death of one or more, as long as there is any one remaining to execute the power. It then devolves upon the survivor; unless the testator, or person from whom the power emanates, has provided for the event of the death of one or more of the executors or trustees, and has appointed a substitute in their place; in such casé the substitute becomes vested with all the power and authority of the first trustee; and the case before us is one of this description. On the death of Samuel and John Franklin, their heirs or executors are, by the express terms of the will, to be substituted in their place, and entrusted with the execution of this power, and ought to have united with Mrs. Osgood, in order to pass a valid title.
According to my view, therefore, of the authority to sell, given by this will, it will not be, necessary for me to enter into an examination of the nice and refined distinctions between naked powers, and powers coupled with an interest. For, beyond all question, it was a matter resting altogether with the testator, to limit and guard this power, in such manner as jhe thought proper; and if not only the necessary construction of the words which he has used, but his plain and obvious mean-
p. 567
lag, as collected from the whole will, was, that this power should not be exercised by one executor alone, we cannot sane- J tioh and confirm the deed from Mrs. Osgood, The power here given is, in the first place, to such of his executors as may act, and to the major part of them. Three out of four of the executors have acted. But the deed was not given by all, or by a major part of those who did act» The power, therefore, in this .espect, has not been pursued. The testator, with uncommon caution and circumspection, (and doubtless, if we look at the provision in the trill, and the disposition of his property, for the very purpose of preventing an injudicious sale of his lands) provided for the event of the death of one or more of his acting executors, and substituted in their place, their heirs or executors, the very persons to whom the estate would doubtless pass; and no one can question the right or legal power of the testator so to do. The books furnish us with a variety of cases of this kind. An example may be seen in Moore, 61. where the testator directed, that his lands should be sold by his executors, or the executors of his executors, and one of bis executors dying intestate, the question was, whether the executors of the other executor could sell; and it was held that they could not, because the authority was joint to the executors of both executors, and, therefore, if one failed, the other could not execufe it. (See also other cases collected by Powell, on Devises, 296.)
In the cases, generally, in the books where this question is examined, we find the power given to the executors, without any provision for the event of their death. The reason why the power is held to survive, is, to prevent the failure of the trust for the want of a trustee. But no such failure could occur here, because the testator has expressly designated the persons who may execute the trust, on the death of those first named. • Had he barely gives to his" executors a power to sell, and accompanied such power with a trust, the law might cast that power upon the survivor, to prevent its becoming extinct, and the trust failing. But the testator had a right to control this legal effect, by an express appointment, by himself, of a trustee; and this he has done, by substituting the heirs or executors of the first trustees. The objection, that this would produce incongruity and confusion, is no satisfactory answer. If the meaning of the testator was left doubtful, we might have
p. 568
recourse to considerations of inconvenience, if any existed, fot ^ie PurPose of ascertaining the probable intention. But where words are so plain and explicit, as not to admit of doubt, we are not at liberty to indulge in objections, on the ground of inconvenience. Whatever weight such objections might be entitled to, where the executors were not beneficially interested in the land over which the power was to be exercised, they do not exist here. The executors appointed in the will, were four of the. residuary devisees, and entitled to their share, either of the land or the avails thereof, upon the sale, ' It was nota trust exclusively for the benefit of others, nor could the executors have been compelled to execute it; they are not ordered to sell, but simply authorized so to do; it was, therefore, left in their discretion, whether to sell or not. The other residuary devisees might, probably, have called upon them in a court of chancery, either to execute or renounce the trust; so that they might take the estate devised to them, stripped of this power of sale suspended over it.
Under such circumstances, there was a peculiar fitness in the-testator’s giving the direction to this power which he has done. As the four executors named in the will were entitled to one half of the property on which the power could operate, they were very much interested in the due execution of it, if it was at all to be executed. It was, therefore, proper that their judgment, or that of the major part of them, should be exercised as to the sale, and if they should die without executing the power, or disposing of the property, it was very reasonable that the authority should accompany the estate when it went into the hands of their representatives. As to one half of the land, it was a mere question of judgment with the executors, whether, or not, to sell their own property. There were no debts or legacies to be paid, and no necessity for selling. The testator, therefore, left it in their discretion, whether to sell, or not, as-they should judge most for the benefit of the estate; and the two acting executors not having, for twenty-seven years, thought proper to sell, the inference is irresistible, that in their judgment no sale ought to be made. To ratify and confirm a sale made by one, would not only be directly repugnant to the words of the will, but would be depriving others, who were interested in the lands, of the guards and checks wisely provided by the testator against an improvident sale. If the testator had intend
p. 569
ed this power should devolve Upon, and be exercised by, any one executor, his language would have been, I give to my executors, who may act, and the survivor of them, his heirs or executors; instead of which, the power is given to the major part of the executors who may act, and to their heirs or executors. This is a limitation of the power to a majority of the acting executors, and is equivalent to saying, it shall not be exercised by a less number. The question is not, therefore, on whom does the law cast the power, where the testator has not expressly provided. The case did not occur under this power, when there was no other trustee to execute it but Mrs. Osgood ; for there were both heirs and executors of the deceased executors, who could have joined in the deed, at the time Mrs. Osgood gave it.
Had Samuel and John Franklin been living, no one will pretend, that the deed of Mrs. Osgood would have been valid $ and, why should it be when those whom the testator has substituted in their place are living? If it was not intended by the testator, that, in case pf the death of all or any of his acting executors, their heirs or executors should be the substitutes charged with the trust, why were they all named ? No possible reason can be assigned for it.
It ought to be kept in mind, that the executors are not ordered or required to sell, but are barely authorized so to do. The legal estate, whether vested in the devisees, or in the heirs at law, was subject to be devested by a sale, if in the judgment of the major part of the acting executors, it should be thought most for the general benefit of the estate ; nor can it alter the construction of this power, if the legal estate should be deemed to be vested in the executors. So far as the executors were charged with any trust in the management and disposition of the estate, it was the same, whether the land remained unsold' or was converted into money. It was to be applied to the benefit of the same eight residuary devisees, of whom the executors themselves were four. If, then, the intention of the testator, collected either from the words he has used, or from the general scope and object of the will, is to govern in the construction of the power, it appears to me very obvious, that such intention has not been pursued. When he has limited the exercise of this power to a major part of his acting executors, and in case of their death, substituted in their
p. 570
p[ace their heirs or executors, it cannot be, that such power is duly executed by a single surviving executor. The testator has expressly guarded against such an execution, by providing a substitute, in case of the death of any of the acting executors. And, until there be a failure of the trustees expressly provided by the testator, there is no ground or principle on which the law will step in, and arrest the power from the hand to which it has been committed by the testator. It was very much pressed on the argument, that it is fairly to be presumed, from the provisions in the will, that the testator, in the appointment of his executors, contemplated the event of none of them qualifying, except his widow; but, I can discover nothing to justify such a conclusion. Where executors have no interest or benefit growing out of the will, and are barely acting for others, it is not unreasonable to suppose, they will reluctantly take upon themselves the executorship. But, when they are so deeply interested, as these executors were, it is unreasonable to conclude, that they would not qualify. They would very naturally wish to take the care and management of their, own property, and prevent its being sacrificed. But, independent of this, the supposition, that the testator contemplated, on any event whatever, that his widow was to execute this power solely, is repugnant to the very terms of the authority. The power is given to the major part of his acting executors ; and these words, major part, can have no application, whatever, to a single executor, and are, indeed# entirely senseless. It is an invariable rule, in the interpretation of writings, that if possible, they must be so construed as to give effect and meaning to every part; and, no words are to be rejected unless they are repugnant to, or inconsistent with, other parts of the same instrument. Upon this rule of construction, how can we entirely reject the words, their heirs or executors ? The testator has thought proper to direct, that if any of his acting executors should die, their heirs or executors, (as it respects the execution of the power,) should be substituted in their place ; and, in this there is nothing repugnant to any other part of the will. It is a plain, simple, and intelligible provision, and, in my judgment, a wise one, if we look at the disposition which the testator has made of his property, and allow him the right of making his own will, tie has seen fit to give five-eighths of the property now in question to his brothers and sisters. Whether this was a wise, or discreet measure, or not,
p. 571
I do not feel myself at liberty to inquire. It is enough for me, that he had a right to do so, and has so done. This disposition ought not to be defeated by giving to his widow solely, a power which he never intended she should have, of thwarting his will, and throwing the property into the hands of her daughters. This power had laid dormant for twenty-seven years. Neither Mrs. Corsa nor Mrs. Wislar, nor any other of the cestuy que trusts, had asked for an execution of it. It was voluntarily assumed by Mrs. Osgood, after a lapse of time sufficient, and more than sufficient, to presume an extinguishment of the power, if the cestuy que trusts had been in possession of the land, and we are warranted in saying, it was assumed for the express purpose of executing this deed, as we cannot reasonably suppose that the business appertaining to the settlement of the estate remained open for such a length of time : but this does not rest on presumption. Mr. and Mrs. Osgood, in their bill, state, that all the debts of the testator have been paid, and all legacies and bequests of his will discharged, excepting the residue of his estate, as disposed of in the 14th clause of the will, being the estate now in question; and this supposition is much strengthened by the factj that the sale was made very shortly after Mrs. Osgood took upon herself to act as executrix, and with little or no examination, into the situation or extent of the property she undertook to sell. If it was necessary or advisable, for the benefit of the estate, that these lands should be sold, Mrs. Osgood, together with the heirs or executors of Samuel and John Franklin, or, at least, of one of them, were the persons on whom the power to sell devolved, at the time the sale was made. Those interested in these lands had a right to have the judgment and advice of those persons, upon the expediency of a sale and the price to be demanded, so as to guard against their being converted, by Mrs. Osgood, to the benefit of her children, to the injury and prejudice of the other residuary devisees. "*
I have not deemed it necessary to go into an examination of .the question, whether this is a power coupled with an interest or trust, and would have survived to Mrs. Osgood, if the testator had not himself expressly provided for the event of the death of one or more of his acting executors; because I am persuaded, it is perfectly immaterial whether it be a power coupled • with an interest : trust, or a mere naked power. If there are
p. 572
other trustees appointed by the testator, who are still living and capable of uniting in the execution of the trust, all must join, whether it be a power of the one description or of the other. That there are such other trustees living, cannot be denied. Nor have I found it necessary, particularly, to touch the question relating to the consideration paid by Clinton and Norton. It must, however, strike every one who has examined the case, that, to say the least of it, they have made an enormous profit upon the purchase, and that such profit is taken out of the pockets of their co-cestuy que trusts. Under such circumstances, every consideration of justice and equity ought to induce us to pause, before we sanction the sale, unless imperiously called upon so to do, by the most stubborn rules of law. But that no such rules of law obstruct our course, or impede the path to justice, I have the most perfect persuasion and firm conviction. Indeed, I cannot but think, that the upholding and maintaining this sale, if it can at all be done, must be by applying technical rules of law, which have in truth no application to the case, and thereby defeating the clear and obvioüs intention of the testator.
The broad and enlarged principles which govern courts of equity on the subject of Trusts, are amply sufficient to enable us to do justice to all parties, without confirming this sale, in its full extent. Mrs. Osgood was the owner, in her own right, of one eighth of the residuary estate sold by her; and so far, the deed to Clinton and Norton may be considered valid. We have before us all the parties in interest. Mr. and Mrs, Osgood, in their answer, admit that they had received the twenty-five thousand dollars from Clinton and Norton, and the object of their bill was to obtain a decree of the court of chancery, to protect them in the distribution of the trust fund among those entitled to it, under the will of Waller Franklin. Seven eighths of this fund may be decreed to be repaid to Clinton and Norton; and, for the purpose of protecting the purchasers under Clinton and Norton, all sales made by them may be confirmed, and conveyances directed to be given by proper parties; and Clinton and Norton be decreed to account to their co-cestuy que trusts for their distributive shares of the proceeds of such sales.
I am, accordingly, of opinion, that the decree of the court of chancery, so far as it confirms the sale to Clinton and Norton, ought to be reversed; and a decree entered conformably to the principles I have mentioned.
p. 573
Canting, Crosby, Dayton, Elmendorf, Keyes, and Livingston, Senators, were of the same opinion.
Bates, Cochran, Hascall, Hart, Prendergast, Ross, Stranahan, Stewart, Tibbits, and Van Vechten, Senators, concurred in the opinion delivered by Mr. Justice Platt.
A majority of the court[1] being of opinion that the decree of the court of chancery ought to be affirmed. It was, therefore, .ordered, adjudged, and decreed, that the decree of the court of chancery, appealed from in this cause, be affirmed, and that the appellants pay to the respondents their costs to be taxed, and that the record be remitted, &c.
Decree of affirmance.
The court made the following General Rule :
it is ordered, that hereafter, it shall be the duty of the appellant or plaintiff in error in this court, to deliver a copy of the opinion of the chancellor or supreme court, to each member, as an Appendix to his case, previous to the argument thereof, except where such opinion has been previously published by the. reporter.
* April 8th j for1 affirming, 13 4 for reversing, 7=
p. 574
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Footnotes
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