-where the only executor to qualify was a beneficiary in the will to the extent of one fourth of the estate. Leavens v. Butler, 8 Port. (Ala.) 380.

-where the executors named in the will by which the power of sale is conferred are among the beneficiaries, and are to share in the distribution of the entire estate. Bedford v. Bedford, 110 Tenn. 204, 75 S. W. 1017.

In

that upon the discharge of said executors, net income. The bill further alleged that complainant and Marcia I. Spaulding took on the 19th day of April, 1899, the said charge of the estate, and acted as trustees Howard H. Spaulding filed his petition in under said will until on or about the 26th bankruptcy in the United States district day of March, 1909, when the said Marcia court for the northern district of Illinois; I. Spaulding died, since which time com- that he was adjudged a bankrupt, and on plainant has acted, and continues to act, as July 26, 1899, was discharged as such; that the sole surviving trustee under said will. in the schedule filed in the bankruptcy proThe bill alleged that complainant has col- ceedings the provisions of the will of Samuel lected the rents under said trusteeship, has G. Spaulding, deceased, concerning the interinvested the same, and has accounted to and est of said Howard H. Spaulding, were set paid over the income to the said Marcia I. out, followed by the statement, "Petitioner Spaulding during her lifetime; that since is advised that he has no interest in the the death of said Marcia I. Spaulding com- trust estate or any part thereof." The bill plainant has accounted to Mabel H. Fox-alleged that the State Bank of Chicago was well for one half of the net income from said appointed trustee in bankruptcy, and filed estate, and that he has elected to pay to a petition to sell all the right, title, and inFlorence B. Spaulding the other half of the terest of said Howard H. Spaulding under the power of sale. Franklin v. Osgood, 14| sell, and yet the other provisions of the Johns. 527. will evince a design in the testator that at all events the lands are to be sold, in order to satisfy the whole intent of the will, then, also, the power survives. this latter case, it is not a naked power, in the sense of Lord Coke's general rule, but is coupled with other trusts and duties which require the execution of the power to sell. Barne's Case, W. Jones, 352; Houell v. Barnes, Cro. Car. 382; Powell, Devises, 297, 307; Barrington v. Atty. Gen. Hardres, 419; Lee v. Vincent, Cro. Eliz. The case of Zebach v. Smith, 3 Binn. 69, 5 Am. Dec. 352, is very analogous to the case now before us. In that case Zebach's will contained the following clause: The executors, namely: George Wolf, Leonard Miller, and Goldfrey Rohrer, shall be empowered to sell my lands. When my debts are paid, if anything should remain, my wife shall keep two cows, etc.' Miller and Rohrer, two of the executors, renounced, and Wolfe, the sole surviving executor, conveyed, under that power, the lands of the testator to his own son-in-law and another. It was attempted to defeat this sale, first, on the ground that it was a naked power, and did not survive; and second, because the sale was fraudulent; being made to a son-in-law for an inadequate price, in old continental money, etc. court decided that it was a power coupled with a trust, to be executed for the benefit of others; that although the power was given in the plural number, and a single executor did not satisfy the literal expression of the will, yet the power sur vived, and the conveyance was deemed

-as to interest of a third person vesting 26; Sugden, Powers, 141.

in donee or grantee.

There is some confusion among the decisions as between a power to sell real estate, coupled with an interest, and such a power coupled with a trust. The confusion apparently arises out of the use of language, rather than out of any very great difference of opinion on the point. In Peter v. Beverly, 10 Pet. 532, at page 564, 9 L. ed. 522, 535, the court, in speaking of a power coupled with an interest, said: "It is not a power coupled with an interest in executors, because they may derive a personal benefit from the devise. For a trust will survive though no way beneficial to the trustee. It is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question. And when an executor, guardian, or other trustee is invested with the rents and profits of land, for the sale or use of another, it is still an authority coupled with an interest, and survives." Also see Wilson v. Snow, ante, 604, and Atzinger v. Berger, ante, 622.

valid."

The

That kind of power, i. e., to be exercised That there is a distinction, and that the for the benefit of a third person, is by courts have not thought it necessary to some courts called a power coupled with make the distinction in all cases, is clearly a trust. Franklin v. Osgood, 14 Johns. brought out in Taylor v. Benham, 5 How. 527, is a good example. At page 553, the 233, 12 L. ed. 130, where the court said: court said: "There is also another class "Either of two constructions of his will of cases which clearly show that where would accomplish this object. The one we the terms made use of in creating the have just adopted, considering him as depower detached from the other parts of vising the proceeds of the lands, and hence the will confer merely a naked power to their title, to his brother and sister, sub

and by virtue of said will, and that saiding has been appointed executor of her essale was made and confirmed; that S. R. tate. The bill alleged that the Second NaFlynn purchased the interest of Howard H. tional Bank of St. Paul claims an interest Spaulding under said will, and afterwards in said estate, and prays that the will may conveyed the same to the Second National be construed and the interests and rights of Bank of St. Paul. The bill further alleged the various parties in and to said estate be that Samuel G. Spaulding left surviving him determined, and that said trustee be dihis widow, Marcia I. Spaulding (now de- rected concerning his rights, powers, and ceased), his son, Howard H. Spaulding, and | duties in the premises.

Pet. 565, 9 L. ed. 535. There, as here, the executors were not expressly named as the persons who were to sell the land, yet, say the court, it is a power vested in them by necessary implication.' See also Tylden v. Hyde, 2 Sim. & Stu. 238; 2 Story, Eq. Jur. § 1060; Ridout v. Dowding, 1 Atk. 420; Jackson ex dem. Hunt v. Ferris, 15 Johns. 346; Kent, Com. 326; Davoue v. Fanning, 2 Johns. Ch. 254; Bogert v. Hertell, 4 Hill, 492. There, as here, it was also contended that if they had the power to sell it was a naked one, and could not survive; but the court say, if they had another duty to perform under the will, with the proceeds, it was a power coupled with a trust or an interest, and survived. Peter v. Beverly, 10 Pet. 567, 9 L. ed. 536; Jackson ex dem. Hunt v. Ferris, 15 Johns. 346. And the only difference is, that the subsequent duty to be performed there was the payment of debts, and here it was to pay over the money as legacies, and, of course, after the payment of any existing debts out of it."

his daughter, Mabel H. Foxwell, as his only The answer of Mabel H. and Frances Foxheirs at law; that the said Mabel H. Fox- well admits all the allegations of the bill, well is a widow and has one child, Frances but denies that there is any necessity for Foxwell; that said Howard H. Spaulding construing the will, and denies that they and his wife, Florence B. Spaulding, have should be charged with any costs and attwo children, Lester Carter Spaulding and torneys' fees. Howard Henry Spaulding, Jr., both minors; The answer of the Second National Bank that the said Marcia I. Spaulding died of St. Paul sets forth the proceedings in March 26, 1909, and that Howard H. Spauld- bankruptcy, the sale of the interest of Howject to a power in the executors, coupled ing been so ably performed by Thompson, with a trust to sell them and pay certain J., for this court in Peter v. Beverly, 10 legacies; or another, which would consider the power of the executors as one coupled with an interest, and vest the title at once in them for the purpose of selling the lands and discharging the small legacies and debts, if any, but holding the proceeds in trust to be paid over to his brother and sister, for the benefit of the heirs of William Forbes, whomsoever they might then happen to be. See Marlow v. Smith, 2 P. Wms. 198; Braybroke v. Inskip, 8 Ves. Jr. 437; Lewin, Tr. 234; Peter v. Beverly, 10 Pet. 533, 9 L. ed. 522. One of these seems also to have been the construction put on the will by Samuel Savage himself, as he proceeded to visit Kentucky twice to discharge his trust in relation to these lands, and finally sold about a fourth of them as surviving executor, which he could not have done honestly, unless deeming himself possessed of more than the naked power which his executor in his answer now sets up. In order to survive to him, it must have been a power coupled either with a trust or an interest. See cases post. To show that the executors, by such a devise, became possessed of a power coupled with a trust at least, reference may be had to the following cases beside those already cited: Ridout v. Dowding, 1 Atk. 420; Harding v. Glyn, 1 Atk. 469; Davoue v. Fanning, 2 Johns. Ch. 254; Clay v. Hart, 7 Dana, 1; Sugden, Powers, 95, 167; 3 Co. Litt. 113, note, 146, 181, a; 2 Story, Eq. Jur. § 790; Hawley v. James, 5 Paige, 318; Zebach v. Smith, 3 Binn. 69, 5 Am. Dec. 352. One of the tests on this subject is, that a naked power to sell may be exercised or not by the executors, and is discretionary; while an imperative direction to sell and dispose of the proceeds in a certain way, as in this case, is a power coupled with a trust. Clay v. Hart, 7 Dana, 1: Peter v. Beverly, 10 Pet. 533, 9 L. ed. 522; Hicks v. Whitmore, 12 Wend. 554; 2 Story, Eq. Jur. § 1070; Morice v. Bishop of Durham, 10 Ves. Jr. 536. There are some conflicting cases on this subject; but it is not necessary to review them again, it hav

The subject would have been much clearer had the courts uniformly made the distinction. At common law a power coupled with a beneficial interest in the donee or grantee survives, while a power coupled with a trust (or, as some courts might say, with a nonbeneficial interest) survives only when it is not based upon special confidence in the trustee. See note to Wilson v. Snow, ante, 604.

It is seen, therefore, that the one class of powers is not affected by the question of the power's being annexed to the office, while the other class is so affected; hence, the failure to make the distinction might become fatal.

Cases in which the court held that power was coupled with a trust, and therefore subject to the rule of powers conferred ratione officii, are not included in this note, but are cited in the note to Haggin v. Straus, post, 642.

In the following cases where the power of sale was coupled with the duty and au

ard H. Spaulding in said estate, the purchase by S. R. Flynn, and the transfer of the same by Flynn to the Second National Bank of St. Paul. The answer neither admits nor denies that the complainant has elected to pay over to Florence B. Spaulding one half the net income of the estate of Samuel G. Spaulding, deceased, since the death of Marcia I. Spaulding, but denies that he has the power to make such election under the provisions of the will. The answer sets up that, by virtue of the fifth clause of said will, immediately upon the death of the testator there vested in said Howard H. Spaulding an equitable estate in fee of one half of all the residue of the real and personal estate of the said testator, subject only to the equitable life estate of Marcia I. Spaulding, and that anything in the fourth clause conflicting with that interpretation is void; that by virtue of the bankruptcy proceedings and sale and conveyance said bank now is the sole owner of thority to manage the trust for third parties, it was held to be coupled with an interest:

-where it is given by a will, which authorizes and empowers "trustees to sell unproductive city lots devised to them in trust for testator's daughter whenever, in their opinion, it shall be to her interest and advantage to do so." Atzinger v. Berger,

all the right, title, and interest which passed to the said Howard H. Spaulding under and by virtue of said will.

The answer of Howard H. Spaulding, individually and as executor of the last will and testament of Marcia 1. Spaulding, and of Florence B. Spaulding, admits substantially all the allegations of the bill, but denies that it is necessary to construe the will, and further denies that the Second National Bank of St. Paul has any right, title, or interest in or to the estate of Samuel G. Spaulding, deceased, or any part thereof.

A formal answer was filed by James H. Wilkerson, who was appointed guardian ad litem of Lester Carter Spaulding and Howard Henry Spaulding, Jr., minors.

A hearing was had upon the bill, answers, and replications, and a decree was entered July 14, 1910, finding that James D. Wallace is now, and has been for a long time past, the duly authorized and acting truschildren. Vonderhide V. Easy Payment Property Co. 123 Ky. 352, 96 S. W. 449.

"To

-where real property was devised to the -where it is given to executors by a executor in trust for the purposes: will, even though not mandatory, if "to pay his [testator's] debts; second, to set such power was added the active and con- off and pay to his wife such share of the tinuing duty of managing the property, estate as she was entitled to by the laws making disposition thereof, and changing of the state; third, to hold the remainder investments, the will providing that debts in trust for his children; and the trustee were to be paid and that the executors and executor was empowered to control and were to care for the slaves, and that if, in manage the estate; to sell and convey all their discretion, it became necessary, they real and personal property; to execute conwere to sell and reinvest the proceeds, and veyances therefor; to invest the proceeds were to exercise a sound discretion in the for the benefit of the children, as the trusmanagement, disposition, and investment tee should deem best; to use such portion of the estate for the benefit and advantage as was necessary for their support and eduof testator's wife and children." Wilson v. cation; and generally to use the same for the best interests of the children during Snow, ante, 604. minority; and in trust further, that the trustee should convey the property, or the proceeds thereof, to the children, when they should attain the age of twenty-one years. White v. Glover, 59 Ill. 459. This holding vested in the trustee; but an additional was based largely upon the fact that title reason i. e., that the trustee had full power to manage the fund, etc., was also given by the court as a basis for the holding. -where the power was by will conferred as follows: "I hereby constitute and appoint my friends, the Rev. Joshua L. Wilson and the Rev. Oliver M. Spencer, the executors of this my last will and testament, giving them full and complete power as I myself possess, after my decease, to dispose of all my estate, real, personal, and mixed, in the way and manner which they may think best calculated to carry into effect all the purposes specified, in this my last will and testament, except that no part of my estate shall be sold at public sale." Williams v. Veach, 17 Ohio, 171, 49 Am. Dec. 453. Other portions of the will created a trust of proceeds for the benefit of certain legatees. J. W. M.

ante, 622.

-where a testator directed his estate to be held undistributed until the death of

his wife, the income to be paid out as directed, and authorized his executors to sell all or any part of his real estate in their discretion, and invest the proceeds, thus conferring the duties of trustees upon the executors. Danaher v. Hildebrand, 72 Misc. 240, 131 N. Y. Supp. 127.

--where a widow with dower in land, after having received a conveyance of the fee from all the children, and in consideration therefor having conveyed the entire fee to a son in trust for herself during life, with restrictions forbidding the sale or mortgage of the same during her life except on consent of herself and all the children, and at her death the property to be sold for the equal benefit of all the

Having bequeathed both his personalty and his realty to the same persons and by the same terms, it is reasonable to assume he contemplated the same disposition of both. Webbe v. Webbe, 234 Ill. 442, 17 L.R.A. successors in trust. Who should be suc(N.S.) 1079, 84 N. E. 1054.

Messrs. Paul Brown and William H. appointed, is not provided for in the will. Gruver for defendant in error.

Farmer, J., delivered the opinion of the thority to execute powers conferred. The

Whatever of hostility there may be on the part of some courts to spendthrift trusts, their validity has been repeatedly approved by this and many other courts. The oft-repeated cardinal rule that it is the If the power was a mere naked power, or intention of the testator that must govern rested in personal confidence in the donees, in the construction of a will, and, in deterthen, according to the authorities, it could mining the intention, the whole will and all not be executed by a survivor. The nature its provisions must be considered and given of the power is to be determined from a con-effect, if possible, does not require the cita