ment creating the power, or the statute, otherwise declares." Accordingly, where a power is given to two or more executors, all who are living and acting must unite in the execution, 68 But an executor who refuses to qualify need not join. Nor need one who is removed from office, or renounces after qualifying." But it seems that if the will shows that the testator intended to give a personal discretion to the particular individuals named by him as executors, to be exercised by them jointly, all must join in the execution of the power, though one renounce the office."1

69

On the same principle, joint trustees, if living, must all

67 1 Chance, Powers, § 603; 1 Perry, Trusts, § 294; 2 Story, Eq. Jur. § 1062.

68 Chance, Powers, § 606; Peter v. Beverly, 10 Pet. (U. S.) 532; Crowley v. Hicks, 72 Wis. 539; Gould v. Mather, 104 Mass. 283; Wilder v. Ranney, 95 N. Y. 7; Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1, 14 Johns. (N. Y.) 562; Deneale v. Morgan's Ex'rs, 5 Call (Va.) 407; Wilson v. Mason, 158 Ill. 804, 49 Am. St. Rep. 162; Noel v. Harvey, 29 Miss. 72.

69 Warden v. Richards, 11 Gray (Mass.) 277; Denton v. Clark, 36 N. J. Eq. 534; Putnam Free School Trustees v. Fisher, 30 Me. 523; Treadwell v. Cordis, 5 Gray (Mass.) 341; Wright v. Dunn, 73 Tex. 293; Pahlman v. Smith, 23 Ill. 448; Wardwell v. McDowell, 31 IIL 364; Wolfe v. Hines, 93 Ga. 329; Phillips v. Stewart, 59 Mo. 491; Heron v. Hoffner, 3 Rawle (Pa.) 393; Stewart v. Mathews, 19 Fla. 752; Wardwell v. McDowell, 31 Ill. 364; Corlies v. Little, 14 N. J. Law, 373; Meakings v. Cromwell, 5 N. Y. 136; Chanet v. Villeponteaux, 3 McCord (S. C.) 29. In Pennsylvania a formal renunciation is necessary. Neel v. Beach, 92 Pa. St. 221.

St. 21 Hen. VIII. c. 4 (A. D. 1529), provided that, if any of the executors refused to serve, all sales directed by the will should be validly made by those accepting the charge. Sugden, Powers, 125. There is a similar statute in some states, while in others the policy of the statute is adopted without any enactment. 10 Weimar v. Fath, 43 N. J. Law, 1; Clinefelter v. Ayres, 16 Ill: 329; Gould v. Mather, 104 Mass. 283. So, by force of statute. Weimar Denton, 36 N. J. Eq. 419; Wells

v. Fath, 43 N. J. Law, 1; Clark v. V. Lewis, 4 Metc. (Ky.) 269.

71 Tarver v. Haines, 55 Ala. 503; Franklin v. Osgood, 2 Johns. Ch. (N. Y.) 21; Clay v. Hart, 7 Dana (Ky.) 8; Bartlett v. Sutherland, 24 Miss. 395.

unite in the exercise of the power,72 unless one disclaims the trust, in which case the remaining trustee or trustees may act. 78

Death of joint donee.

In the case of a power coupled with an interest, that is, when a power is given to trustees or executors, who are also given the legal title, upon the death of one or more, since the estate or interest survives and is vested in the survivor or survivors, unless a contrary intention appear," the power also survives; while, if the power is a mere naked power, either in executors or others, it will terminate upon the death of one of the donees, unless a contrary intention is shown by the language of the instrument creating the power.75

To determine whether, in the case of a naked power, there is such an intention that it shall survive, is frequently difficult. There is no such intention, it is presumed, when a

12 Lewin, Trusts, 683; 2 Perry, Trusts, §§ 493, 499; 2 Story, Eq. Jur. § 1280; Lancashire v. Lancashire, 2 Phil. Ch. 664; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394; Wilbur v. Almy, 12 How. (U. S.) 180; Chapin v. First Universalist Soc., 8 Gray (Mass.) 580; Morville v. Fowle, 144 Mass. 109.

78 Lewin, Trusts, 683; 2 Perry, Trusts, § 502; Cooke v. Crawford, 13 Sim. 96.

742 Perry, Trusts, 505; Dillard v. Dillard, 97 Va. 434. See Hadley v. Hadley, 147 Ind. 423.

75 Co. Litt. 112b, 113a, 181b; Lewin, Trusts, 688; 2 Perry, Trusts, § 499, 505; Lane v. Debenham, 11 Hare, 188, 5 Gray's Cas. 352; Robinson v. Allison, 74 Ala. 254; Putnam Free School Trustees ▼. Fisher, 30 Me. 523; Peter v. Beverly, 10 Pet. (U. S.) 532, 564; Muldrow's Heirs v. Fox's Heirs, 2 Dana (Ky.) 79; Gutman v. Buckler, 69 Md. 7; Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1, 14 Johns. (N. Y.) 527; Golder v. Bressler, 105 Ill. 419; Robertson v. Gaines, 2 Humph. (Tenn.) 367; Conklin v. Egerton's Adm'r, 21 Wend. (N. Y.) 430; Compton v. McMahan, 19 Mo. App. 494; Tainter v. Clark, 13 Metc. (Mass.) 220; Gray v. Lynch, 8 Gill (Md.) 403; Parker v. Sears, 117 Mass. 513.

1

み

power is conferred, by their proper names, on two or more persons who are not executors or trustees.78 But if the power is given to persons in the character of executors rather than as individuals, it appearing that it is as holders of the office that the execution of the power is intrusted to them, it may be exercised by the survivor ;" and the power will, it seems, be regarded as so given when it is in aid of the administration and settlement of the estate, as a power to sell for the payment of debts and legacies, or for the sake of creating a common fund composed of the personalty and the proceeds of the realty."

78

.77

A statute sometimes provides that a surviving executor or trustee may exercise the powers originally given to the executors or trustees jointly; but even then the power will not, it seems, be exercisable after the death of one, if it was intended to rest in the joint personal discretion of the persons named as executors or trustees,79 or if it was given to them in their individual rather than in their official character.80

Te Co. Litt. 113a, Hargrave's note; Sugden, 128; Montefiore v. Browne, 7 H. L. Cas. 261, 267; Peter v. Beverly, 10 Pet. (U. S.) 532, 564; Marks v. Tarver, 59 Ala. 335; Glover v. Stillson, 56 Conn. 316.

77 Co. Litt. 113a, Hargrave's note; Sugden, 128; Hquell v. Barnes, Cro. Car. 382, 5 Gray's Cas. 351; Peter v. Beverly, 10 Pet. (U. S.) 532, 564; Zebach's Lessee v. Smith, 3 Bin. (Pa.) 69; Putnam Free School Trustees v. Fisher, 30 Me. 523; Hazel v. Hagan, 47 Mo. 277; Weimar v. Fath, 43 N. J. Law, 1; Davis v. Christian, 15 Grat. (Va.) 11; Mastin v. Barnard, 33 Ga. 520; Chandler v. Rider, 102 Mass. 268; Bradford v. Monks, 132 Mass. 405; In re Murphy's Estate, 184 Pa. St. 310; Gaines v. Fender, 82 Mo. 497; Dick v. Harby, 48 S. C. 516; Fitzgerald v. Standish, 102 Tenn. 383.

78 2 Perry, Trusts, § 499, and note; 2 Woerner, Administration, 339; 5 Gray's Cas. 356, note. See Zebach's Lessee v. Smith, 3 Bin. (Pa.) 69; Chandler v. Rider, 102 Mass. 268; Jackson v. Ferris, 15 Johns. (N. Y.) 346.

79 Robinson v. Allison, 74 Ala. 254; Hunter v. Anderson, 152 Pa. St. 386. Compare Ely v. Dix, 118 Ill. 477.

80 Lippincott v. Wikoff, 54 N. J. Eq. 107; O'Rourke v. Sherwin, 156 Pa. St. 285. Compare Weimar v. Fath, 43 N. J. Law, 1.

(625)

If a power is given to several persons as a class, as "my sons" or "my trustees," without naming them, it can, it is said, be exercised by the survivors so long as more than one remains,81

283. Mode of execution.

The terms of the power in regard to the character of the instrument by which it is to be exercised, or in regard to the execution, attestation, or delivery of such instrument, must be strictly complied with; and accordingly, if the instrument creating the power declares that it shall be executed by deed, it cannot be executed by will, and vice versa;82 and if it declare that it shall be executed by an instrument having a certain number of witnesses, it cannot be executed by an instrument, though signed and sealed, having a less number of witnesses.83 If, however, the powe contains no restrictions, express or implied, upon the mode of execution, it may be executed by any instrument sufficiently showing an intention to execute it.84

In some states it is provided by statute that the execution · must be by an instrument, whether a will or a conveyance

81 Co. Litt. 113b; Sugden, 128; 4 Kent, Comm. 326; 2 Washburn, Real Prop. 323; Story, Eq. Jur. 1062, note. See Shelton v. Homer, 5 Metc. (Mass.) 462; Carroll v. Stewart, 4 Rich. Law (S. C.) 200; Muldrow v. Fox's Heirs, 2 Dana (Ky.) 79. Compare 1 Chance, Powers, 655. As to aider in equity, see post, § 287.

82 Sugden, 207, 210, et seq; Williams, Real Prop. 296; Wright v. Wakeford, 17 Ves. 454, 4 Taunt. 213; Porter v. Turner, 3 Serg. & R. (Pa.) 108; Moore v. Dimond, 5 R. I. 121; Hacker's Appeal, 121 Pa. St. 192; Porter v. Thomas, 23 Ga. 467; Wilson v. Maryland Life Ins. Co., 60 Md 150; Hood v. Haden, 82 Va. 588; Gaskins v. Finks, 90 Va. 384; Wooster v. Cooper, 59 N. J. Eq. 204; Wooster v. Fitzgerald, 61 N. J. Law, 368, 687.

83 Ladd v. Ladd, 8 How. (U. S.) 10; Breit v. Yeaton, 101 Ill. 242; Montgomery v. Agricultural Bank, 10 Smedes & M. (Miss.) £66.

84 Sugden, Powers, 203; Christy v. Pulliam, 17 Ill. 59; Cueman v. Broadnax, 37 N. J. Law, 508. And see Schley v. McCeney, 36 Md. 266.

inter vivos, which would be sufficient to pass the estate if the appointor were the owner;85 and in approximately the same states it is provided that unnecessary formalities enjoined by the creator of the power need not be complied with,80

When the power is, by the terms of its creation, to be exercised at the donee's death, it must be exercised by will.8T

Showing as to intent to execute.

It is well settled that the instrument executing the power need not specifically refer to the power, provided it show an intent to execute it;88 but whether the donee of a power, in executing an instrument sufficient in form for the execution of the power, but not referring specifically thereto, intended to thereby execute the power, has been the subject of frequent litigation. It is the rule in England, and has quite frequently been adjudged in this country, that the intent to execute a power must appear in one of three ways, either (1) by reference to the power; (2) by reference to the property which is the subject of the power; or (3) by reason of the fact that the instrument will be ineffectual unless considered as an execution of the power. 89 On the other hand,

$5 1 Stimson's Am. St. Law, § 1659; 4 Sharswood & B. Lead. Cas. Real Prop. 46; Chaplin, Exp. Trusts, § 622.

se 1 Stimson's Am. St. Law, § 1659; 4 Sharswood & B. Lead. Cas. Real Prop. 46, 59; Chaplin, Exp. Trusts, § 626.

87 Freeland v. Pearson, L. R. 3 Eq. 658; Porter v. Thomas, 23 Ga. 467; Weir v. Smith, 62 Tex. 1. And see Hood v. Haden, 82 Va. 588. 88 Sugden, Powers, 289; Story, Eq. Jur. § 1062a; Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357; Lee v. Simpson, 134 U. S. 572; Matthews v. McDade, 72 Ala. 377; Bullerdick v. Wright, 148 Ind. 477; Chase v. Ladd, 155 Mass. 417; Gindrat v. Montgomery Gas-Light Co., 82 Ala. 596, 60 Am. Rep. 769; Patterson v. Wilson, 64 Md. 193; Campbell v. Johnson, 65 Mo. 439; Dousadow v. Wilde, 63 Pa. St. 170; Scott v. Bryan, 194 Pa. St. 41; Weir v. Smith, 62 Tex. 1. 89 Farwell, Powers, 176; Doe d. Nowell v. Roake, 2 Bing. 497; Den d. Nowell v. Roake, 6 Bing. 475, 5 Gray's Cas. 333; Walke v.