The rule that an ancient deed to property in continuous
possession of the person producing it proves itself on the theory
that the witnesses are dead and it is impossible to produce
testimony showing execution by the grantor is broad enough to
admit, without production of the power of attorney, ancient deeds
purporting to have been signed by agents.
The other necessary facts being present, and the possession of
the property being consistent with its terms and the original
records having been lost, a deed, over forty years old containing
recitals that it was executed by an administrator under power of
sale given by order of the court, will be presumed to have been
executed in accordance with such recitals.
Quaere what rule obtains in the District of Columbia as
to whether the power to convey given to two persons named in a will
may be executed by the survivor when the designation as executors
is descriptive of the persons, and not of the capacity in which
they are to act.
In the District of Columbia, a power of sale given to more than
one person named in a will as executors, coupled with the active
and continuing duty of managing the property, making disposition
thereof and changing investments for the benefit of the family of
testator, is not a mere naked power to sell, but one that creates a
trust which survives and can be executed by the survivor.
Where the duties imposed upon executors are active, and render
the possession of the estate convenient and reasonably necessary,
they will be deemed trustees for the performance of those duties to
the same extent as though declared so to be in the most explicit
terms.
35 App.D.C. 562 affirmed.
John H. A. Wilson, of Washington county, District of Columbia,
by his will, probated March 20th, 1858, after providing for the
payment of his debts, devised all of his property, real and
personal, to his wife, Adelaide Wilson,
Page 228 U. S. 218
during her life of widowhood, for the support of herself and his
five minor children. In case of her death or marriage, the property
was bequeathed to the testator's brother, Thomas O. Wilson, in
trust for the use of the children.
"And I authorize and empower my said brother to exercise his own
judgment and prudence in the discharge of the duties hereby
confided to him, and it is my wish and desire that my executrix and
executor hereinafter named shall and may at any time they shall
deem best and to the advantage of my said wife and children, sell
and convey any part or all of my real and personal estate, and
invest the proceeds in goods, stocks, or otherwise, as they may
consider best, for the benefit of my said wife and children, in
fact to exercise a sound discretion in the management, disposition,
and investment of my said estate for the purpose aforesaid, to-wit,
for my wife and children."
There was a provision requiring the executrix and executor to
care for his servants;
". . . lastly, I do hereby constitute and appoint my dear wife,
Adelaide Wilson, executrix, and my affectionate brother, Thomas O.
Wilson, executor, of this my last will and testament."
The will was probated March 20, 1858. Thomas O. Wilson, one of
the executors, died September 21, 1858. On March 8, 1865, Adelaide
Wilson made a deed in which, after referring to the will and its
probate, and the authority conferred upon herself and her deceased
brother-in-law as executrix and executor, to sell for the benefit
of the wife and children of the testator, she, by virtue of the
authority vested in her by said will, sold the land to Leonard
Huyck, his heirs and assigns forever.
After eight mesne conveyances, duly recorded, the property, in
February, 1905, was sold to the defendant, Chester A. Snow, he and
his predecessors in title having held continuous possession of the
property since 1865.
Page 228 U. S. 219
Adelaide Wilson died March 28, 1906, and on October 23, 1906,
the children brought this action of ejectment against Snow. He
claimed under the deed of the executrix, but was not able to prove
that she had ever qualified as such. A witness who was familiar
with the records in the register of wills' office testified that he
had found therein the will of John H. A. Wilson, with an
indorsement that it had been approved by the register of wills, and
an entry in a book that the will had been approved and filed, but
that he found no other entries or papers to indicate that either
Adelaide Wilson or Thomas O. Wilson had ever qualified as executors
or received letters testamentary; that the bond book for December
30th, 1856, to April 20th, 1861, was missing, and that, in that
book, the bond of the executors would have been recorded if one had
been given; that the books containing the returns of executors from
1856 to 1861 are missing; that he is unable to say whether the
qualification of executors would be shown by the bond book alone or
not; that he finds no docket entry relating to the case. Another
witness who had frequent occasion to examine the records of the
probate office between 1857 and 1860 testified that, during that
period, the probate office was conducted in a negligent manner;
that the witness during that period, in searching for original
papers which had not been recorded,found them in a mass of others
piled together in an empty fireplace in the building.
There was a verdict for the defendant. A motion for a new trial
was overruled. The case was taken to the Court of Appeals, error
being assigned on the refusal to charge that the burden was on the
defendant to prove that the executrix had qualified; that there was
no evidence that she had qualified; that the recitals in the deed
were not evidence against the plaintiffs, and on the further ground
that the court erred in refusing to direct a verdict for the
plaintiffs. The judgment of the Supreme Court of the District was
affirmed by the Court of Appeals of
Page 228 U. S. 220
the District of Columbia, and the case brought here by writ of
error.
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
The plaintiffs in this action of ejectment claimed under the
will of their father, John H. A. Wilson. The defendant, Charles
Snow, claims under a deed executed in 1865 by Adelaide Wilson, the
nominated executrix. On the trial, there was proof that the will
had been probated in 1858, but no record evidence that the
executrix had ever taken the oath of office and qualified as such.
After showing the loss of certain books and the negligent manner in
which the probate office was conducted from 1855 to 1861, the
defendant insisted that the recital that the deed had been executed
under the power of sale conferred by the will was sufficient to
show that the nominated executrix had taken the oath and qualified
as such.
The deed was more than thirty years old. The possession of the
land had for forty years been consistent with its terms, and it was
therefore admissible as an ancient deed, proving itself on the
theory that the witnesses were supposed to be dead, and that it was
impossible to produce testimony to show the signing, sealing, and
delivery by the grantor. This rule has been extended so as to admit
ancient deeds purporting to have been signed by agents without the
production of the power of attorney -- the same reason
Page 228 U. S. 221
that justified the introduction of an ancient deed, without
proof of the signature of the witnesses or grantor, authorizing its
admission without proof of the capacity in which, or the power
under which, it purported to have been executed. For, in many
cases, it would be quite as impossible to prove the due execution
by him as agent as by himself as owner. So that, where the other
necessary facts are present, and the possession of the land has
been consistent with its terms, the ancient deed proves itself,
whether it purports to have been signed by the grantor in his own
right, as agent under power of attorney, or -- the original records
having been lost -- by an administrator under a power of sale given
by order of court, not produced, but recited in the deed itself.
There are cases which support plaintiffs' contention (
Fell v.
Young, 63 Ill. 110), but the weight of authority sustains the
ruling of the court below. In
Baeder v. Jennings, 40 F.
199, 216, 217, Justice Bradley at circuit, held that, other things
concurring, the recitals in an ancient deed were some evidence of
the facts recited, and he accordingly admitted the administrator's
deed forty years old, which purported to have been made in
pursuance of an order of court which was not produced. A similar
ruling was made in
Williams v. Cessna, 43 Tex.Civ.App.
315, where an administrator's deed, executed more than thirty years
before the trial, was admitted on the faith of its recitals, proof
being made that probate records had been destroyed by fire. In
Willetts v. Mandlebaum, 28 Mich. 521, a deed reciting that
it was made in pursuance of an order in a partition suit was
admitted on proof that the records had been lost, the court holding
that the same strict proof was not required of ancient probate
proceedings as where they were of recent date.
See also Mumford v.
Wardwell, 6 Wall. 433;
Davis v. Gaines,
104 U. S. 386,
104 U. S. 398;
Fulkerson v.
Holmes, 117
Page 228 U. S. 222
U.S. 389;
Taylor v.
Benham, 5 How. 272;
Carver v.
Jackson, 4 Pet. 83;
Crane
v. Morris, 6 Pet. 611;
Reuter v. Stuckart,
181 Ill. 540-542;
Buhols v. Boudousquie, 6 Martin (N.S.)
153.
2. The plaintiff, however, insists that even if the recitals are
sufficient to show that Mrs. Wilson had qualified as executrix, her
deed could not operate to convey the fee, inasmuch as she could
not, by herself, execute the power conferred upon herself and her
brother-in law jointly. It was urged that, in this respect, as in
all others relating to the construction of wills, the testator's
intention must govern; that he had indicated special confidence in
the discretion of his brother, and, while contemplating that it
might be necessary to sell the property, had expressly provided
that this could not be done unless both the wife and the brother
joined in the deed. It was further argued that this particular
testamentary requirement, for the combined discretion of the two,
coincided with the general rule that a joint power cannot be
exercised by the survivor.
This is true where the power has been given A and B by name, and
according to some cases, it is true also where given to A and B,
executors. It is not so where the power has been conferred upon A
and B, as executors, or where the power is coupled with an
interest. These distinctions have given rise to endless
controversies and conflicting decisions -- a result naturally to be
expected where an official title has been treated as a mere means
of describing the persons instead of designating the capacity in
which they were to act. It is, of course, true that the same
persons may be referred to in different capacities in the same
will. A and B may be donees of a naked power; or A and B, who are
the executors, may be donees of such a naked power; or A and B,
executors, may be given a power to be exercised in their official
capacity. In Sugden on Powers (144), it was said
"that the liberality of modern times will probably induce the
courts to hold that in every
Page 228 U. S. 223
case where the power is given to executors, as the office
survives, so may the power."
This prediction has not been altogether fulfilled, though the
tendency is to hold that the words "A and B, executors," "A and B,
hereinafter named as executors," "my said executors," is not a
roundabout means of designating the individuals who are to act, but
confer power upon them in their official capacity which may be
exercised by the survivor.
The plaintiffs, insisting that the rule contended for by them is
a rule of property, argue that the authority to "my executor and
executrix hereinafter named" conferred power upon Adelaide Wilson
and Thomas O. Wilson
nominatim and as individuals only --
the words executrix and executor being merely descriptive of the
persons later referred to by name, rather than designating the
capacity in which they were to act. Numerous cases referred to in
Robinson v. Allison, 74 Ala. 254, are relied on to sustain
the contention. Many authorities to the contrary are cited by the
defendant in error, among which are
Brassey v. Chalmers, 4
De Gex, McN. & G. 528;
Davis v. Christian, 15 Gratt.
11;
Smith v. Winn, 27 S.C. 598, where the power was given
"executors hereinafter named."
Weimar v. Fath, 43 N.J.L.
1.
See also Gould v. Mather, 104 Mass. 283, 286;
Zebach v. Smith, 3 Binnney (Pa.) 69;
Clay v.
Hart, 7 Dana 1;
Wolfe v. Hines, 93 Ga. 329;
Wood
v. Sparks, 18 N.C. 389.
3. It is unnecessary to attempt to reconcile the authorities or
to determine which rule obtains in the District of Columbia. For,
reading this will as a whole, it is clear that the power survived
because coupled with an interest. It is true that the will did not
specifically give the executors any interest in the land, nor was
the word "trust" used by the testator. But the power to sell was
coupled with the active and continuing duty of managing the
property, making disposition thereof, and changing investments for
the advantage of his family. Debts were to be paid,
Page 228 U. S. 224
and the executors were to care for the slaves. If, in their
discretion, it became necessary, "my executor and executrix
hereinafter named" were to sell all of the property and reinvest
the proceeds in good stocks or otherwise,
"in fact, to exercise a sound discretion in the management,
disposition, and investment of my said estate [for the benefit and
advantage of] my wife and children."
This was not a mere naked power to sell, but created an interest
or raised a trust which would preserve the power to sell without
regard to whether the interest was beneficial to the executors or
not. For it is "the possession of a right in the subject over which
the power is to be exercised that makes the interest" or creates
"an authority coupled with an interest" which "survives for the
purpose of effecting the object of the power."
Peter v.
Beverly, 10 Pet. 532,
35 U. S. 564;
Taylor v.
Benham, 5 How. 233; Pomeroy, Eq.J. (3d ed.), §
1011.
And even if, as claimed, the power to sell was not mandatory, it
was coupled with duties which, though to be exercised at their
discretion, could not be arbitrarily disregarded by the executors.
The duty of management raised the obligation to care for the
property, keep it insured, pay the taxes, and collect the rents.
Adelaide Wilson and Thomas O. Wilson, whether acting as executors
or as trustees by implication, having accepted the appointment,
were bound also to appropriate the income from the land or the
dividends from the stock to the maintenance of the family and the
education of the minor children. For neglect so to do, any one of
the
cestuis que trust would have been entitled to maintain
a bill against the executors or trustees, to compel them to
discharge the duties for the performance of which full power had
been conferred. The rights of the beneficiary would not cease upon
the death of either of the representatives, and as the duty to
manage survived, and followed the land, so did the coupled power of
sale, which was
"manifestly subservient and auxiliary
Page 228 U. S. 225
to the execution of the trusts which the testator had seen fit
to connect with the administration of his will."
Gould v. Mather, 104 Mass. 286;
Tobias v.
Ketchum, 32 N.Y. 319. For
"where the duties imposed upon the executors are active and
render the possession of the estate convenient and reasonably
necessary, [they] . . . will be deemed trustees for the performance
of those duties to the same extent as though declared so to be in
the most explicit terms."
Ward v. Ward, 105 N.Y. 68;
Toronto Trust Co. v.
Chicago &c. R. Co., 123 N.Y. 44;
Gray v. Lynch, 8
Gill, 404, 423;
Weimar v. Fath, 43 N.J.L. 1.
The duties imposed by the will continued after the death of
Thomas O. Wilson, and the power to sell was lawfully exercised by
Adelaide Wilson, surviving executrix, when she executed the deed to
Huyck, the predecessor in title of the plaintiff. The judgment
is
Affirmed.
