Brown v. Armistead

• Citation: 27 Va. 594
• Parties: Brown v. Armistead
• Decision Date: 17 December 1828
• Court: Supreme Court of Virginia

27 Va. 594

Brown v. Armistead

Supreme Court of Virginia

December 17, 1828

This was an appeal from the Chancery Court of Williamsburg dissolving an Injunction obtained by the Plaintiff, Samuel Brown, against Stark Armistead, Administrator with the Will annexed of David Wright, deceased, and others, and dismissing his Bill. The case is fully stated in the following opinion of the Court.

Decree affirmed.

Leigh for the Appellant.

Johnson for the Appellee.

JUDGE CARR delivered his opinion. ^[*] The PRESIDENT, and JUDGES CABELL and COALTER, concurred, and the Decree was affirmed.

OPINION

JUDGE CARR

In 1813, David Wright made his Will, in which we find the following clause: " My will and desire is that my Executors hereafter appointed sell at public sale all my land, provided the said land will sell for as much, in their judgment, as will be equal to its value and the money arising from such sale be placed in the hands of my friend Stark Armstead one of my Executors hereafter appointed, who I vest with power to apply the said money to any use or uses he in his discretion may deem best for the benefit of my wife and all my children." The Testator then adds, " In case the land should not be sold on account of its not selling for its value in the judgment" of those in whom he had vested the power to sell, lends a particular part of it to his wife for life. He appointed three Executors, of whom Stark Armstead was one. The Executors all refused to take upon themselves the execution of the Will. The wife relinquished all benefit under it, and qualified as Administratrix, with the Will annexed. She died between three and four years after her qualification; and on the 9th of February, 1818, the same Stark Armstead, who had been appointed Executor, qualified as Administrator de bonis non with the Will annexed, and three days afterwards, sold the land to Samuel Brown. The Deed, bearing date the 12th of February, 1818, contains a full recital of all the facts on which the authority of the Administrator to sell the land depended. The land was sold for $ 6,560, payable in three annual installments, to be secured by bonds, with personal security, and also a Deed of Trust on the land. The contract was carried into complete execution by the vendee's accepting the Deed, taking possession of the land, and sealing and delivering the Deed of Trust and Bonds. In 1823, five years after the execution of the contract, the vendee paid $ 1,658 of the purchase money, and in April 1824, he filed his Bill, stating that Armstead had no power under the Will to sell the land; that his title is therefore defective, and that he has a right to a Decree, either perfecting it, or if that cannot be done, rescinding the contract, and giving him back his money, with interest, which he prays may be made a lien on the land. He makes Armstead, the Trustee, and the four children of Wright, Defendants. Two of the children are adults, two infants. Armstead and one of the adults are non-residents, and have been properly proceeded against. The Trustee, the other adult, and the infants (by their Guardian,) have answered. The children insist earnestly on the contract; that under the Will, the Law, and the decisions of this Court, the Administrator had full power to sell; that the sale was fair, all the facts being disclosed to the vendee; that it was a very good sale for them, and that the Bill has grown out of the subsequent depreciation in the price of lands. The adult Defendant offers to give any security for the title that can be required. The Chancellor dismissed the Bill. We will enquire in the first place, could the Administrator execute the power of sale given by the Will to the Executors? In the 1st vol. R. C. 388, § 52, it is said, " The sale and conveyance of lands devised to be sold, shall be made by the Executors, or such of them as shall undertake the execution of the Will, if no other person be thereby appointed for that purpose, or if the person so appointed shall refuse to perform the trust, or die before he shall have completed it," (thus stood the Law, as passed in 1785, 12th Stat. at Large, 150; in 1974, was added the rest of the clause, as it now stands in the Revisal of 1819, viz:) " but if none of the Executors named in such Will shall qualify, or, after they have qualified, shall die before the sale and conveyance of such lands, then, in those cases, the sale and conveyance thereof shall be made by such person or persons to whom administration of the Testator's estate, with the Will annexed, shall be granted." This Law as passed in 1785, was taken from 21st H. 8, c. 4. It was admitted in the argument, that if the Testator had directed a positive and unconditional sale of the land by his Executors, the case would have come directly within the Law: but they are directed to sell " provided the land will sell for as much in their judgment as will be equal to its value; " and this, it is insisted, renders it a special confidence reposed in the individuals appointed Executors, which is personal to them; and can only be exercised by them, and not even by a part of them, but by the whole only. This point was argued with great strength, but the researches of the Counsel had enabled him to produce no cases in support of it; nor have I found any. Without pretending to enter deeply into the doctrine of powers, I may observe that at Common Law they were of two kinds, a naked power, and a power coupled with an interest. Thus, if A. devise his land to his Executors, B., and C. and D., with directions to them to sell it, and hold the money for the benefit of E., this is a power coupled with an interest, because the land being devised to the Executors, the legal estate passes to them. But if A. direct in his Will, that his Executors B., C. and D., sell his land, and hold the money for the benefit of E., this is a naked power, because no estate or interest passes to the Executors. In their construction of these powers, the Courts of Common Law have said, that the first shall be taken liberally, the last strictly; that a naked power give to Executors to sell land, can only be exercised by all the Executors; that, therefore, if one refuse to qualify, or to join in the sale, or die before a sale, no sale can take place. But if lands be devised to Executors to be sold, the power will survive, and such Executors as qualify, or remain alive, may execute the power. This was sacrificing reason and justice to narrow views of strict technical form, for nobody could fail to see, that in each case the intention of the Testator was to turn the land into money, and give that to E., and that in each, equally, the Executors were merely instruments for effectuating such intention. On this ground, Courts of Equity, at an early day, took up the subject, and decided that such naked powers, though extinct at Law, should be enforced in Equity, " rightly deeming, (says Hargrave, in his Note on Coke Littleton, 113, a,) the purpose, for which the Testator directs the money arising from the sale to be applied, to be the substantial part of the devise, and the persons named to execute the power of selling, to be mere Trustees, which brings the case within the general rule of equity; that a trust shall never fail of execution for want of a Trustee, and that if one is wanting, the Court shall execute the office." I apprehend, that the Stat. 21st H. 8, c. 4, was intended to save parties from the delay and expense of resorting to Courts of Equity in such cases, by supplying a Trustee, and such also was the meaning of our Act; and as I think, such should be the spirit in which it is executed. When the question is, whether Equity will assist the execution of a power, by supplying a Trustee, or otherwise, the important enquiry does not seem to be, whether the exercise of the power involves a personal confidence, (for most powers do that in a greater or less degree,) but whether it be a pure and simple power, or a power blended with a trust. In the first case, Equity never interposes; in the last, always. In Tollet v. TolletP. Wms. 490, the Master of the Rolls says, " This Court will not help the non-execution of a power, since it is against the nature of a power, which is left to the free will and election of the party whether to execute or not, for which reason Equity will not say he shall execute it, or do that for him which he does not think fit to do for himself." Lord C. J. Wilmot says, (Wilm. 23, cited Sugd. on Powers, 393,) " Powers are never imperative: they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory on the conscience of the party intrusted." " But sometimes," (says Sugden, in his Treatise on Powers, 393,) " trusts and powers are blended; a man may be invested with a trust to be effected by the execution of a power given to him, which is in that case imperative; and if he refuse to execute it, or die without having executed it, Equity, on the general rule that the trust is the land, will carry the trust into execution. This is the case where a power is given by a Will to Trustees to sell an estate, and apply the money upon trusts. The power is in the nature of a trust." In Harding v. Glyn, 1 Atk. 469, Harding devised certain articles to his wife, " but...