Suarez v. Pumpelly.

"For value received, I do hereby grant, bargain, sell, assign, transfer and set over unto

the within instrument of writing, and all my right, title, interest, claim and demand in and to the premises therein particularly mentioned and described. To have and to hold the same to him

and his heirs and assigns forever."

At the same time Graham executed twenty like instruments to W. G. Wood, twenty to W. English and twenty to T. T. Greasley; all of which were indorsed in the same manner.

These declarations were then delivered to the various parties in interest. None of them were recorded in the county of Chemung. At the time this suit was commenced, the complainant held and owned for the benefit of a foreign house, ten of the declarations of trust or certificates, and Harmon Pumpelly held and owned sixty-seven. The parties were ignorant as to the holder of the three remaining certificates, which were three of those issued in the name of W. G. Wood.

On the 26th of October, 1841, Mr. Graham being apprehensive that judgments or decrees would be docketed against him, which would become a lien on the legal title to the lands in question, in order to secure the holders of the certificates from the embarrassments which might ensue, and with the advice and direction of the holders of forty-seven of the same, conveyed the whole premises in fee to Augustus W. Clason, Jr., and Mordecai Ogden.

On the 29th of July, 1843, Mr. Pumpelly, owning sixty-seven of the certificates, directed Messrs. Clason and Ogden to advertise the premises for sale, and to sell them at auction to the highest bidder, at the capitol in the city of Albany on the 6th of September ensuing; and they were advertised accordingly, in several newspapers. On the day appointed, the premises were, sold in pursuance of the advertisement, and were purchased by Mr. Pumpelly for $5100, to whom a deed was executed by Messrs. Clason and Ogden.

On the same 4th of September, prior to the sale, the bill in this cause was filed against Clason, Ogden, and Pumpelly together with A. Gordon, one of the complainant's beneficiaries. The bill prayed to restrain the sale then advertised, and that the pre

Suarez v. Pumpelly.

mises might be sold or divided under the direction of the court. I charged that Graham's grantees had notice of the trusts on which he held the title, and that his conveyance and substitution was made without the complainant's consent. The complainant contended that Graham had no power of substitution, and that the persons to whom he had conveyed, could not execute the trusts in his stead; and if they could, that their attempted execution of them, was defective.

Messrs. Clason, Ogden and Pumpelly, answered, and claimed that the conveyance by Graham and the sale to Pumpelly, were valid. Clason and Ogden claimed no interest in the premises, nor any right, other thau to execute the trusts in the manner which Graham had undertaken by the certificates. They had received from Pumpelly and proffered to the complainant, his share of the proceeds of the sale.

C. B. Moore and F. B. Cutting, for the complainant.

A. W. Clason, Jr., for himself and M. Ogden.

M. Hoffman, for H. Pumpelly.

THE ASSISTANT VICE-CHANCELLOR.-The deed from Joseph to Graham, appears to have vested the latter with an absolute and unqualified estate in fee, on the 12th of October, 1836.

The declarations of a trust in the lands conveyed, executed by Graham in April following, could not have the effect to divest the absolute estate acquired by the deed.

By those instruments, he declared that he was a trustee of the lands which had been thus conveyed to him. He covenanted to hold them in trust, and to exercise certain powers in trust in the disposition of the lands and their proceeds.

The validity and effects of those powers, are not called in question by any of the parties; and the defendants concede, nay assume, on their part, that on the conveyance by Graham to Ogden and Clason, the latter took the property subject to the execution of those powers.

The questions are, whether Ogden and Clason could rightfully

Suarez v. Pumpelly.

execute the trust powers; and if they could, was their attempted execution of them conformable to the declarations of trust.

The powers to be exercised were; to sell the premises, or such portion thereof as the majority of shares should specify, at such times, at public or private sale, and on such notice and terms, as the majority of shares should direct. Out of the proceeds to pay all proper expenses, and apportion and divide the residue to and among the holders of the shares. And if so directed by a majority of the shares, to allot, divide and set apart, the unsold premises, to and among the shareholders.

The instrument contains no reservation or provision of a power of appointment or substitution by Graham, of any person or persons, to do these acts in his stead. Upon such an instrument, delivered to each shareholder, each appears to have paid the price or consideration for his share. Each shareholder thus acquired a right and interest in the covenants and powers contained in the declaration of trust.

The powers were to be executed by Graham personally. The manner of their execution, was important to the parties in interest. His skill and success in effecting a sale; his economical conduct of the trust; and his judgment and impartiality in making a partition, if that should become necessary; were elements of the contract which the parties entered into by this trust deed, and which the court upon the construction of the trust, must infer were a part of the inducement for the purchase of the shares.

It seems to me perfectly clear, that such powers cannot be delegated, without an express provision in the deed creating the powers, or the consent of all the parties.

The conveyance from Graham to Ogden and Clason therefore, while it may have transmitted the legal title, did not clothe them with the powers in trust which are contained in the declarations executed to the shareholders.

They could not proceed to sell at auction or otherwise, under the direction of the majority of the shareholders; and the proceeding instituted for that purpose, as stated in the bill, was nugatory.

This conclusion renders it unnecessary to look into the mere

Martin v. Sherman.

regularity of that proceeding, in respect of the forms prescribed by the trust.

A sale under the direction of the court, is doubtless the proper mode of winding up this trust. But all the necessary parties for that purpose, are not before the court.

The three outstanding shares, and Mr. Graham should be brought in. If the owners of the three shares cannot be ascertained, it may suffice to bring in as defendants, the persons in whose names the declarations of trust for those shares were issued.

In the meantime, an order may be entered directing the cause to stand over for the purpose of adding those parties, and reserving all further questions and directions.(a)

MARTIN and BANKS v. SHERMAN and others.

Where a testator directs his executors, after paying legacies, to sell his real estate to the best advantage in their power, and as sound discretion might direct, and then to divide the whole proceeds equally among his children; there is an equitable conversion of the land; the quality of personalty is given to its proceeds to all intents; and it is to be considered in equity as personal property for all the purposes of the will.

The executors under such a will, made a sale which was alleged to be invalid by the heirs of one of the daughters of the testator who survived him. Her husband having ratified the sale and received a part of the proceeds; Held, that her husband was entitled with her assent to receive her share of the proceeds, and that his ratification of the sale was conclusive in respect of the same.

Jan. 13; Feb. 18, 1845.

On the 15th of October, 1835, the executors of John Taylor, sold at private sale and conveyed to the complainants several lots of land in the city of New York, of which the testator died sei

(a) The complainant made further parties, and on the cause being brought to a hearing at a subsequent term, a decree was made directing a sale of the premises, and a distribution of the proceeds among the holders of the certificates. The sale and deed to Pumpelly were set aside.

Martin v. Sherman.

sed. The executors settled with the residuary devisees and legatees, all of whom who were competent to act for themselves, acquiesced in the sale, and ratified it by receiving portions of the proceeds. A question was afterwards made by purchasers from the complainants, as to the validity of their title, in consequence of the executors having sold to them at private sale instead of advertising the lands and selling them at public auction; upon the force of the act of 1835, (Session Laws, ch. 264, p. 304,) in connection with 2 R. S. 109, 56.

The adult devisees and legatees who were living confirmed the sale; but one of the residuary devisees and legatees, Mrs. Janet Sherman, having died in the mean time, leaving infant children; the complainants filed their bill to have the title conveyed to them by the executors declared valid, or to have it quieted and confirmed.

It appeared that on the first of April, 1836, Charles Sherman, the husband of Janet, received from the executor a part of her share of the proceeds of the sale, and gave a receipt for the same, referring to the sale and ratifying their proceedings. Mrs. Sherman died in 1843, leaving twelve infant children. She made no application or claim for a settlement during her lifetime.

The bill was taken as confessed by all except the infant defendants, and the cause was heard as to them, on their guardian's answer and the testimony.

E. S. Van Winkle, for the complainants.

C. A. Sherman, for the infant defendants.

THE ASSISTANT VICE-CHANCELLOR.-The complainants insist that the sale to them by the executors of John Taylor, was regular and valid.

This presents an important question, upon which I prefer not to express any opinion, inasmuch as there is another point upon which I have no difficulty, and which is decisive of the case.

After sundry devises and bequests, the testator disposed of the bulk of his estate in these words.

"12th. I do hereby direct and empower my executors, all or