Cooley v. Kelley, No. 7,761.

• Docket Nº: No. 7,761.
• Citation: 98 N.E. 653, 52 Ind.App. 687
• Case Date: May 31, 1912
• Court: Court of Appeals of Indiana

52 Ind.App. 687
98 N.E. 653

COOLEY
v.
KELLEY et al.

No. 7,761.

Appellate Court of Indiana, Division No. 2.

May 31, 1912.

On petition for rehearing. Denied.

For former opinion, see 96 N. E. 638.

Clarence A. Royse and Gavin, Gavin & Davis, for appellant. Frank A. Kelley and Foley, Royse & O'Mara, for appellees.

ADAMS, J.

In her petition for rehearing, appellant, while not disputing the general rule that a power coupled with an interest will survive, insists that the power given by section 6 of the will of William H. Harper to his trustees was one of special trust and confidence in them as individuals, and not a power committed to them by virtue of their office.

The case of Dillard v. Dillard, 97 Va. 434, 34 S. E. 60, is pressed upon our attention, and is in point, assuming that the above construction of the will is true. In the Dillard Case, it is held that a power conferred on three trustees, without words of survivorship, and involving personal confidence, was one that could be only exercised conjointly, and that upon the death of one of the trustees the authority would be determined.

In support of this proposition, the case of Cole v. Wade, 16 Vesey, Jr., 27, with others, is cited and is in point. In that case, the Master of Rolls said: “I conceive that wherever a power is of a kind that indicates a personal confidence, it must, prima facie, be understood to be confined to the individual to whom it is given; and will not, except by express words, pass to others to whom by legal transmission the same character may happen to belong.” This case was determined by the High Court of Chancery in 1807, and almost a century later, the

[98 N.E. 654]

same court in Re Smith (1903) 73 L. J. 74, overruled Cole v. Wade, the court holding that the general principle would be applicable if it had been followed and adopted by the later cases. The court further said: “The principle, however, is open to the criticism that it is expressed in loose and general terms. All, or nearly all, powers necessitate the personal confidence of the testator in the donees thereof, and it is very difficult to draw the line-for example, powers of leasing and selling and investing, powers of maintenance and advancement of children all require the exercise of discretion, but the principle could hardly be applied to them. I find it impossible to formulate any rule by which the court can say that certain powers are, and others are not, of such a nature that they must necessarily be given...