Johnson v. Bowden

• Decision Date: 01 January 1875
• Parties: T. J. JOHNSON ET AL. v. DRUCILLA BOWDEN ET AL.
• Court: Texas Supreme Court

43 Tex. 670

T. J. JOHNSON ET AL.

v.DRUCILLA BOWDEN ET AL.

Supreme Court of Texas.

1875.

APPEAL from Anderson. Tried below before the Hon. M. H. Bonner.

This case was before this court on appeal in 1872. (37 Tex., 621.) The facts are given in the opinion.

T. T. Gammage, for appellants.

Reagan & Greenwood, for appellees.

MOORE, ASSOCIATE JUSTICE.

The only question which it is necessary for us to decide in this case depends upon the construction to be given to the last paragraph in the will of Drucilla McMeans, authorizing her executors to sell the house and lots in controversy in this suit.

By the first item in the will the testatrix directs that her personal expenses and debts shall be paid. Following which there are six items making specific legacies. In the eighth she divides the residue of her estate equally among her children, with the exception of a son in California. By the ninth she directs that the probate court shall exercise no jurisdiction over her estate, except to admit her will to probate, and receive an inventory of her property. In the tenth she directs that her personal apparel be divided between her daughters. The will then concludes in the following language, to wit:

“I hereby nominate and appoint John G. Gooch and E. H. Herrill to be the executors of this my last will and testament, and request that the probate court require no bond or security of them as such. In testimony whereof I hereto set my hand and seal, using scrawl for seal, this 28th day of February, A. D. 1865.

Should my executors deem it to the interest of my estate to sell the house and lots this day deeded to me by my daughter, Drucilla Bowden, at public or private sale, I direct that they shall have full and ample power to do so.”

The will was duly probated on the 27th of March, 1865, and on the 7th of March, 1866, said Gooch, who alone had qualified as executor, sold said house and lots at private sale.

Without entering further into the details of the transaction it will suffice to say that the court held, contrary to the decision of this court in this very case when here on a former appeal, (37 Tex., 621,) that the power conferred by the will was a joint power to the two parties named as executors, and could not be executed by one of them alone, though the other renounced the trust and refused to qualify as executor. This ruling was fatal to the plaintiff's action, and unless correct will require a reversal of the judgment.

Few branches of law have been more fruitful subjects of litigation than the proper construction of powers and the due exercise of the functions conferred by them, or has given rise to more subtile distinctions, and as to which the rulings of the courts have been seemingly more in conflict. It would, therefore, be an unprofitable task to undertake a general and elaborate discussion of the subject or review of even the leading decisions upon it. The general principles which most of the standard elementary writers recognize as the result of the decisions are summed up in the following propositions: “First. That when a power is given to two or more by their proper names, who are not made executors, it will not survive without express words. Second. That when it is given to three or more generally, as ‘to my trustees,’ ‘my sons,’ & c., and not by their proper names, the authority will survive whilst the plural number remains. Third. That when the authority is given to executors and the will does not expressly point to the joint exercise of it, even a single surviving executor may execute it. Fourth. But when it is given to them nominatim, although in the character of executors, it is at least doubtful whether it will survive.” (Sugd. Powers, 165-6.)

The same general principles are thus expressed by Hill, in his work on the law relative to trustees, (p. 687:) “A power of sale, whether it be a common-law authority or one taking effect under the statute of uses, can be exercised only by the parties to whom it is expressly given. Hence doubts have occasionally arisen as to the validity of the execution of the power after the death of the original donors. For instance, when a power is given to two or more persons by name, without any words of survivorship, it cannot be exercised by the others alone after the death or renunciation of any one of the donees. But when the power is conferred on ‘the trustees' as a class, and not by name, then the...