Dick v. Harby

• Decision Date: 20 March 1897
• Parties: DICK v. HARBY.
• Court: South Carolina Supreme Court

26 S.E. 900

48 S.C. 516

DICK v. HARBY.

Supreme Court of South Carolina

March 20, 1897

Appeal from common pleas circuit court of Sumter county; O. W Buchanan, Judge.

Controversy between William Edward Dick, as plaintiff, and Adeline W Harby, as defendant. Judgment for plaintiff. Defendant appeals. Affirmed.

The decree of the court below and the exceptions are as follows:

Decree.

"A case agreed between the parties above named, without action, dated the 1st day of December, 1896, and duly verified, has been submitted to this court, and the arguments of counsel thereon have been duly heard.

"The first question submitted to the court is as to the authority of the sole surviving executor, Gabriel Wesley Bradford, to exercise the power of sale conferred under the eleventh clause of testator's will. It will be observed that although the testator, by the provisions of his will seemed to contemplate the possible necessity of sales, in whole or part, of his estate mentioned in the sixth clause for reinvestments in other property, preparatory to the final partition and division of the same among the remainder-men yet he never conferred any power of sale upon the trustee John S. Bradford, appointed under said sixth clause, but, on the contrary, that he reserved such power, and annexed the same to the office of his executors, rather than confer the same upon any individual, nominatim. From an inspection of the provisions of this will, so carefully prepared, it may be fairly assumed that the testator was not inops conailii, and hence that he conferred this power upon the office of executor rather than upon the individual. He may well be regarded as having considered that probably one or both of his executors might renounce the office, or die, before final partition and settlement of his estate, or that only one of his executors might be alive to execute its provisions, or that the appointment of an administrator cum testamento annexo might become necessary. The testator was therefore careful not to designate the executors by name when conferring this power of sale in the eleventh clause. He conferred it upon the office. In this respect this will is almost identical in its language with that construed in the like case of Smith v. Winn, 27 S.C. 591, 4 S.E. 240.

"The question, then, is: What was the nature of this power, and did it survive in G. W. Bradford upon the death of his co-executor? In Reeves v. Tappan, 21 S.C. 9, powers are classified, and are there divided into three kinds, viz.: '(1) A naked commonlaw power, like a power given to an attorney or agent to do any act; (2) a power coupled with an interest in the donee; (3) a power coupled with a trust (the trust being the executorship in that case), and conferred upon the office of executor, so as to enable the party filling that office, whoever he might be, to properly discharge its duties and functions.' In the case at bar, the power was to sell and reinvest, awaiting final distribution, and preparing for that purpose. In Smith v. Winn, 27 S.C. 591, 4 S.E. 240, it is said: 'The test of such a power being coupled with a trust is that a third party has such an interest as will enable him to call on the executors to execute the trust.' Can it be doubted here that the life tenant or remainder-men had such an interest in testator's estate that the court of equity, in a proper case, would enforce the execution of the power of sale, even against the opinion of the executors to the contrary? Many circumstances readily suggest themselves where such change in the condition of the estate under this will might not only be desirable, but necessary, and yet such change might be obstructed by the abuse of the executor's discretion, or possibly his unreasoning obstinacy. If, therefore, the power here in question was a power, coupled with a trust, then all the authorities agree in holding 'that it survives, and may be executed, by one executor, where the others die or renounce the office.' Smith v. Winn, supra; Reeves v. Tappan, supra; Bredenburg v. Bardin, 36 S.C. 197, 15 S.E. 372; De Saussure v. Lyons, 9 S. C. 492; Robinson v. Ostendorff, 38 S.C. 66, 16 S.E. 371; 1 Sugd. Powers, §§ 144-146; 2 Williams, Ex'rs, 816, 814; 2 Washb. Real Prop. 715-718; 18 Am. & Eng. Enc. Law, 961.

In Sugden on Powers, supra, it is said: 'Where authority is given to executors, and the will does not expressly point to a joint exercise of it, even a single surviving executor may exercise it; and the liberality of modern times will probably incline the courts to hold that, in every case where the power is given to executors, as the office survives so may the power.' Where the power is given to the executors virtute officii, it none the less survives, because it is discretionary; and, notwithstanding this discretion, equity will enforce such powers and trusts. Davis v. Christian, 15 Grat. 11; Bradford v. Monks, 132 Mass. 405; 18 Am. & Eng. Enc. Law, supra. The only case which has been called to my attention which may be regarded as sustaining a contrary doctrine is the case of Mallet v. Smith, 6 Rich. Eq. Cas. 12. A careful examination of this case will show that it does not militate against the principles hereinbefore announced, but rather sustains them. That case, too, has been twice reviewed by our court in recent years. In Smith v. Winn, supra, in the circuit decree of Judge Fraser, which was affirmed on appeal, it is said: 'There the power was one given in "special trust and confidence," and in no way connected with the executorship. It was a power, as I remember, to appoint to whom, in certain contingencies, the estate should go, and not a mere power to administer, as to pay debts, sell, and invest, all of which could be enforced or even exercised by the courts. *** The power given in the will in Mallet v. Smith is one which no court could enforce, or exercise any authority to compel the depositary of the power to execute, otherwise than in some way agreeable to his own will and discretion.' So, too, in De Saussure v. Lyon, supra, it is there said, in reference to the same case of Mallet v. Smith; 'The question was whether power conferred on executors to revoke legacies, where the object of that power was to prevent legatees from disputing certain dispositions made for slaves in contravention of the statutes, could be exercised when only one of the executors named qualified. The decision was put upon the ground that such authority must be regarded as conferring a strictly personal power, and, as such, did not follow or conform to the office of executors.' I conclude, therefore, that both at the common law and under our statutes (see Bredenburg v. Bardin, supra) the power under the will of the testator, Robert Bradford, survived in Gabriel Wesley Bradford, and that he alone, after the death of his co-executor, might lawfully execute the same.

"The second question submitted to the court is whether the deed in question here was a valid execution of the power of sale by the executor, although he did not therein refer to the power under said will. I think this question is quite free from doubt. In Bilderback v. Boyce, 14 S.C. 538, all the authorities were reviewed, and the rule was stated to be as follows. 'The court would infer an intent to execute a power only in three cases: First, where there was some reference in the will or other instrument to the power; second, or reference to the property which is the subject on which it is to be executed; third, or where the provision in the will (or other instrument) would have no operation except as an execution of the power.' Now, in the case at bar, while the executor, Gabriel Wesley Bradford, in the deed in question, did not 'refer to the power,' and hence it does not come within the first class of cases above mentioned, yet the subject of the deed was a part of the land whereon testator had resided as mentioned in his will, and which the executors were authorized to sell; and, furthermore, the deed would be wholly inoperative unless referred to the power, because the said G. W. Bradford had no personal or individual interest in this land, his only connection with it being as executor of said will. In 4 Kent, Comm. 335, in treating of the subject, 'Power Need not be Referred to,' the author says: 'The power may be executed without reciting it or even referring to it, providing the act shows that the donee had in view the subject of the power. *** The general rule of construction both as to deeds and wills is that if there be an interest and a power existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. If there be any legal interest on which the deed can attach, it will not execute a power. If an act will work two ways, the one by an interest, and the other by a power, and the act be indifferent, the law will attribute it to the interest, and not to the authority. *** If the will be made without any reference to the power, it operates as an appointment under the power, provided it cannot have operation without the power.' I am bound to hold, therefore, that the deed here must be referred to the power, and is a valid execution of it, for otherwise it can have no effect or operation at all, and that cannot be supposed to have been the intention of the grantor.

"In view of my rulings upon the two questions above stated, the third question becomes unimportant. I would add, however, that the long possession of this property by the grantee of the executor, Mrs. Brown, and her heirs and alienees, now nearly forty years last past, and the character of that possession, and the fact that trustees in whom the legal title was vested (subject only to a

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