275; Missouri ex rel. Walker v. Walker, whether the power is given to the person or 125 U. S. 339, 31 L. ed. 771, 8 Sup. Ct. Rep. to the office. 929; Hall v. Gambrill, 34 C. C. A. 190, 63 U. S. App. 740, 92 Fed. 32; 22 Am. & Eng. Enc. Law, 1093.

The power was not mandatory. Fitzgerald v. Wynne, 1 App. D. C. 119; 28 An.. & Eng. Enc. Law, 2d ed. 902. Whether a power is given to the office or to the individual depends upon whether or not its exercise involves a duty ordinarily connected with the office.

Ferre v. American Bd. of Comrs. 53 Vt. 164; Evans v. Chew, 71 Pa. 47; Ingle v. Jones, 9 Wall. 486, 19 L. ed. 621; Hamilton v. Clarke, 3 Mackey, 428; Waters v. Margerum, 60 Pa. 42.

In each case it is a question of intention

the court made the following general statement: "The statute, then, in express terms, provides a mode of executing the will of the testator in case of the death or failure to act, or other disability, of the executor named in the will. These provisions were in force at the time of the making of the will in question, and were a part of the law in view of which the will must have been executed. The testator is presumed to have understood that in case of the decease of the party named as executor without any other provision in the will supplying his place, the probate court would be authorized to appoint an administrator with the will annexed, who would be thereby invested with all the powers of the executor named in the will, subject only to such special supervision and limitations as were imposed by the statute itself. The effect is the same as if the testator had incorporated these provisions in express terms into the will. An administrator with the will annexed having been duly appointed, we think, under the statute, he is invested with all the powers conferred on the executor named in the will, except so far as there are express limitations put upon those powers, and that he can sell if the executor himself, if alive, could sell."

Farwell, Powers, p. 372; Robinson v. Allison, 74 Ala. 254; Tarver v. Haines, 55 Ala. 503; O'Brien v. Battle, 98 Ga. 769, 25 S. E. 780; Den ex dem. Cain v. McCann, 3 N. J. L. 438, 4 Am. Dec. 384; Catton v. Taylor, 42 Barb. 578; Bergen v. Bennett, 1 Cai.

Cas. 15, 2 Am. Dec. 281; Ferre v. American
Bd. of Comrs. 53 Vt. 162; Bartlett v. Suth-

erland, 24 Miss. 401; Hall v. Irwin, 7 Ill.
176; Nicoll v. Scott, 99 Ill. 529; Brown v.
Hobson, 3 A. K. Marsh. 380, 13 Am. Dec.
187; Naundorf v. Schumann, 41 N. J. Eq.
14, 2 Atl. 609.

Mr. John C. Gittings also for plaintiffs in error.

will to be construed according to the laws of the state where it was made.

The

In Pratt v. Stewart, 49 Conn. 339, the court said: "The statute (Gen. Stat. p. 371, § 12) authorizes the court of probate to appoint an administrator with the will annexed whenever the executor refuses to accept the trust or to give a bond. This statute must be construed as conferring upon the administrator so appointed the ordinary powers for the purpose of settling and disposing of the estate which the executor would have had if he had accepted the trust. But if the will confers upon him powers or charges him with duties not essential to the settlement of the estate. and which are founded in personal confidence, such powers and duties will not ordinarily be transmitted to the administrator. ordinary provisions of a will directing the custody, control, and management of the estate during the settlement, and its final distribution among the objects of the testator's bounty, fall within the former class and may be executed by an administrator. But when the will expressly constitutes the executor a trustee for some special purpose, or vests in him a discretionary power in reference to some matter outside of the ordinary powers and duties of an executor or administrator, or charges him with some duty indicating a special confidence reposed in him,-in such cases the duty imposed or power conferred will not, as a general rule, be transmitted to the administrator."

But it was held in Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475, 615, that this statute does not enable the adminstrator c. t. a. to sell the real estate for a purpose not administrative, and the court points out that in the Kid- Revised Code, 7 Del. Laws, 272, § 17, well Case, supra, the power to sell the real chap. 90, provides that "if, by any will, auestate was not a mere naked power, but thority be given to several executors or was coupled with trusts mainly necessary other persons, to sell real estate, if one or for the purpose of administration. And it more of them die before the complete exewas held that even though testator was a cution of said authority, such authority citizen of and made his will in a sister shall survive; and if by any will, real esstate, whose statutes enable the administra-tate be devised to be sold, and no person tor c. t. a. to sell the real estate in any be authorized to make said sale, the person case where the executors could do so, and or persons having the execution of the said the will was duly entered of record in will, or the survivors or survivor of them, California, the administrator could not exer- if several, shall have authority to sell said cise the power over real estate in Califor-real estate in execution of said devise; and Beatty, Ch. J., dissented from this if by any will authority be given to an part of the decision, he being of the opinion executor to sell real estate, and the person that the testator must have intended his so named as executor therein shall die, or

nia.

Messrs. Hugh H. Obear, J. J. Dårling- | distribution, will give life to the power and ton, William F. Mattingly, and Charles enable it to be executed by the survivor of A. Douglas, for defendant in error: several to whom it was originally given. Peter v. Beverly, 10 Pet. 532, 9 L. ed. 522; Taylor v. Benham, 5 How. 233, 12 L. ed. 130; Robertson v. Gaines, 2 Humph. 376; Magruder v. Peter, 11 Gill & J. 217; Parsons v. Boyd, 20 Ala. 117; Re Cooke. L. R. 4 Ch. Div. 454; May v. Brewster, 187 Mass. 524, 73 N. E. 546.

The will in controversy created a trust, notwithstanding the fact that the executors were not named as trustees, and that no express words of trust were used.

Tobias v. Ketchum, 32 N. Y. 329; Pom. Eq. Jur. § 1011; Meek v. Briggs, 87 Iowa, 617, 43 Am. St. Rep. 410, 54 N. W. 456; Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303; Ward v. Ward, 105 N. Y. 74, 11 N. E. 373; Toronto General Trust Co. v. Chicago, B. & Q. R. Co. 123 N. Y. 37, 25 N. E. 198.

When a power is given to executors virtute officii, or, as it is often expressed, ratione officii, or qua executors, upon the death of one, the power survives to the survivor of survivors, and may be executed by him or them.

Sugden, Powers, 144; Davis v. Christian, 15 Gratt. 12; Gould v. Mather, 104 Mass.

Any interest, however slight, or any duty to be performed under the will, with the proceeds, if only to pay legacies or make be removed, or discharged from his office | purpose, I do hereby vest in my said execuof executor before the execution of said au- trix full power and authority to sell and thority, or shall refuse or neglect to give convey the said farm or tract of land in bond, or renounce, or is incapable, the per-fee simple, in as full and ample a manner son or persons having the execution of the in every respect as I myself could do if said will, or the survivor or survivors of living, and such sale to be either by public them, if several, shall have authority to or private sale as my said executrix may sell said real estate in execution of said determine, and out of the net proceeds of devise. provided, that nothing in this sec- said sale. I give and bequeath one-third tion shall contravene any express direction part absolutely, to my said wife, Elizabeth contained in any will." This statute en-E. Ocheltree, and this bequest to be in lieu ables the administrator c. t. a. to execute and bar of her dower of my estate." the power where lands were devised to the wife of testator, who was appointed testatrix for life, and the lands were to be sold within one year after her death by one named in the will, or, in case of his refusal and "nonacceptance from any cause which he may deem sufficient, then proper authority shall appoint some suitable person to execute the same," and the person named died before the testator, and the wife never qualified as executrix. Curran v. Ruth, 4 Del. Ch. 27 (no mention was made by the court of this statute, but the statute was enacted before the date of the case: and see Lockwood v. Stradley, supra, for a Delaware case decided before the enactment thereof). But the statute does not apply where, "by the plain and unambiguous meaning of the will, the power of sale could, under no circumstances, have been carried into effect by the executor," as where lands were devised to testator's wife during life or widowhood, after her death or marriage, to her son for life, and at the death of the son to be sold and the proceeds divided among certain children. Chandler v. Delaplaine, 4 Del. Ch. 503.

Illinois Rev. Stat. 1874, p. 111, § 37, which provides: "When a sole or surviving executor or administrator dies, without having fully administered the estate, if there is personal property not administered, or are debts due from the estate, or is anything remaining to be performed in the exe cution of the will, the county court shall grant letters of administration with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the estate of the deceased not already administered,”—does not enable an administrator c. t. a. to sell land under the power in the will without the aid of a court. Nicoll v. Scott, 99 Ill. 529. And the same is true of a succeeding executor appointed by the court under a provision in the will. Bigelow v. Cady. 171 Ill. 229, 63 Am. St. Rep. 230, 48 N. E. 974.

Under Kentucky act of 1810, 1 Rev. Stat. p. 500, § 13, chap. 37, which reads as follows: "An administrator with the will annexed shall possess and exercise all power and authority, and shall have the same rights and interest, and be responsible in like manner. as the executors therein named, or any of them," -an administrator

Delaware Revised Code, 1893, chap. 90, p. 692, § 17. was cited by counsel in Ochel-c. t. a. has power and authority to execute tree v. McDaniel, 5 Penn. (Del.) 288, 63 Atl. 687, where, without an opinion, it was held that an administrator d. b. n. c. t. a. had authority to convey the real estate where the will provided: "Fifth. I will and direct that upon the arrival of my youngest son, at the age of twenty-six years. my wife, Elizabeth E. Ocheltree, as the executrix of this my will, shall sell my farm in Mill Creek Hundred, and for that

a power of sale conferred by the will upon the executors. Peebles v. Watt, 9 Dana, 103, 33 Am. Dec. 531 (no mention of the statute, but case was decided at the same term as Steele v. Moxley, 9 Dana, 137, where statute was cited, but not quoted); Steele v. Moxley, 9 Dana, 137; Gulley v. Prather, 7 Bush. 167 (quoting statute and holding [upon the authority of Smith v. Haywood, opinion, winter term, 1869, not

286; Chandler v. Rider, 102 Mass, 268; Chew, 71 Pa. 47; Robinson v. Gaines, 2 May v. Brewster, 187 Mass. 524, 73 N. E. Humph. 376. 546; Peter v. Beverly, 10 Pet. 532, 9 L. ed. 522; Dick v. Harby, 48 S. C. 516, 26 S. E. 900; Smith v. Winn, 27 S. C. 598, 4 S. E. 240; Fitzgerald v. Standish, 102 Tenn. 383, 52 S. W. 294; Zebach v. Smith, 3 Binn. 69, 5 Am. Dec. 352; Williams v. Conrad, 30 Barb. 524; Golder v. Bressler, 105 Ill. 433;

Gaines v. Fender, 82 Mo. 497; Weimar V. in 1865 by Adelaide Wilson, the nominated
Fath, 43 N. J. L. 1; Houell v. Barnes, Cro.
Car. 382; Brassey v. Chalmers, 16 Beav.
233; Brassey v. Chalmers, 16 Beav. 231, 4
De G. M. & G. 527, 537; Story, Eq. Jur.
1062; Terrell v. McCown, 91 Tex. 242, 43
S. W. 2; Muldrow v. Fox, 2 Dana, 75;
Simpson v. Simpson, 93 N. C. 373; Evans v.

1855 to 1861, the defendant insisted that torney,-the same reason that justified the the recital that the deed had been executed introduction of an ancient deed, without under the power of sale conferred by the proof of the signature of the witnesses or will was sufficient to show that the nom-grantor, authorizing its admission without inated executrix had taken the oath and proof of the capacity in which, or the qualified as such

power under which, it purported to have The deed was more than thirty years been executed. For in many cases it would old. The possession of the land had for be quite as impossible to prove the due exeforty years been consistent with its terms, cution by him as agent as by himself as and it was therefore admissible as an an- owner. So that where the other necessary cient deed, proving itself on the theory that facts are present, and the possession of the the witnesses were supposed to be dead, and land has been consistent with its terms, that it was impossible to produce testi- the ancient deed proves itself, whether it mony to show the signing, sealing, and purports to have been signed by the grantor delivery by the grantor. This rule has in his own right, as agent under power of been extended so as to admit ancient deeds attorney, or the original records having purporting to have been signed by agents been lost-by an administrator under a without the production of the power of at-'power of sale given by order of court, not Mississippi statute, art. 136, p. 458, Code | trust." Under this statute, the adminis1857, provides: "Whenever any last will trator c. t. a. has power to sell real estate and testament shall empower and direct under the power contained in the will the executors as to the sale of property, the where the same is mandatory, even though payment of debts and legacies, and the some discretion is given in the matter to management of the estate, the directions of the executors as to time and terms of sale the will shall be followed by the executor, (Dilworth v. Rice, 48 Mo. 124); and under and no provision herein contained shall so this statute the public administrator, who operate as to require the executor to pursue has taken charge of the estate on failure of a different course from that prescribed in the executor to qualify, is the proper perthe will if it be lawful, and if land be de-son to execute a power of sale of real vised to be sold the sale shall be made and estate conferred by the will (Coil v. Pitthe proper conveyance executed by the ex-man, 46 Mo. 51), and the same is true ecutors, or such of them as shall undertake under Revised Statutes of 1899, § 137 the execution of the will, or by the person (Francisco v. Wingfield, 161 Mo. 542, 61 appointed by the will to execute the trust; S. W. 842). and if the executor should fail to qualify, or should die before he executes the will, and if the person appointed should fail to execute the will, the sale shall be made by the administrator with the will annexed." Under this statute it is not required that the devise of the land should be a devise of the title to the executor. It is sufficient to enable the administrator c. t. a. to sell and make title if the testator unconditionally orders a sale. Sandifer v. Grantham, 62

Miss. 412.

Mississippi statute, Code 1857, art. 136, p. 458, continued in Code 1871, § 1194, p. 236, provides that when land is directed by will to be sold, and the executor or person appointed to execute the trust shall fail, the sale shall be made by the administrator c. t. a. This statute applies where an executor named in the will dies before the testator, an administrator c. t. a. has been appointed, the testator directed that the land should be sold, the time of sale to be determined by one who was a part owner of the land. Peters v. Bowman, Fed. Cas. No. 11,028, final hearing Fed. Cas. No. 11,029, affirmed in 98 U. S. 56, 25 L. ed.

91.

Missouri statute, 1 Wagner's Stat. 93, § 1, provides: "The sale and conveyance of real estate under a will shall be made by the acting executor or administrator with the will annexed, if no other person be appointed by the will for that purpose, or if such person fail or refuse to perform the

And the administrator c. t. a. can, by virtue of this statute, execute the power of sale where the donee has, for any reason, failed to do so, even though the land was devised directly to the donee of the power, indicating special confidence in him. Evans v. Blackiston, 66 Mo. 437.

But in the Revision of 1879, § 137, the last phrase in the statute as quoted supra, i. e., "or if such person fail or refuse to perform the trust," was omitted while the other part was re-enacted. In Compton v. McMahan, 19 Mo. App. 494, it was held that since the revision, the question must be governed wholly by the common law; hence, where the power was conferred upon the executor personally, and not ratione officii, or annexed to the office, it cannot be executed by the administrator c. t. a. But the omitted phrase was reinserted by the act of 1883, page 23. Re Rickenbaugh, 42 Mo. App. 328.

An administrator c. t. a. may sell the real estate, at least for the payment of debts, under the power contained in the will, by virtue of Nebraska Compiled Statutes, chapter 23, where there was no special confidence reposed in the executor. Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031. The statute reads as follows: "Section 169. Every person who shall be appointed administrator with the will annexed shall, before entering upon the execution of his trust, give bond to the judge of probate in the same manner and with the same condi

produced, but recited in the deed itself. | of its recitals, proof being made that proThere are cases which support plaintiffs' bate records had been destroyed by fire. contention (Fell v. Young, 63 Ill. 110), In Willetts v. Mandlebaum, 28 Mich. 521, but the weight of authority sustains the a deed reciting that it was made in purruling of the court below. In Baeder v. suance of an order in a partition suit was Jennings, 40 Fed. 200 (14), 216, 217, Jus- admitted on proof that the records had tice Bradley, at circuit, held that, other been lost, the court holding that the same things concurring, the recitals in an ancient strict proof was not required of ancient deed were some evidence of the facts re- probate proceedings as where they were of cited, and he accordingly admitted the ad- recent date. ministrator's deed forty years old, which See also Mumford v. Wardwell, 6 Wall. purported to have been made in pursuance 433, 18 L. ed. 760; Davis v. Gaines, 104 of an order of court which was not pro- U. S. 386 (4), 398, 26 L. ed. 757, 762; Fulkduced. A similar ruling was made in Wil-erson v. Holmes, 117 U. S. 389, 29 L. ed. liams v. Cessna, 43 Tex. Civ. App. 315, 915, 6 Sup. Ct. Rep. 780; Taylor v. Benham, 95 S. W. 1106, where an administrator's 5 How. 272, 12 L. ed. 149; Carver v. Jackdeed, executed more than thirty years be- son, 4 Pet. 83, 7 L. ed. 790; Crane v. Morris, fore the trial, was admitted on the faith '6 Pet. 611, 8 L. ed. 519; Reuter v. Stuckart,