86 464. Powers in trust imperative-Right to select beneficiaries-Statute-Every trust power, unless its execution or non-execution is made expressly to depend on the will of the grantee, is imperative, and imposes a duty on the grantee, the performance of which may be compelled in equity, for the benefit of the parties interested. A trust power does not cease to be imperative when the grantee has the right to select any, and exclude others, of the persons designated as objects of the trust. Trust powers are imperative and their execution may be decreed in equity unless their execution or non-execution is made expressly to depend on the will of the grantees.87 A power in trust may be imperative though the language creating it is permissive. If the disposing power is given and it is not coupled with words expressly or by necessary implication making the donee of the power the final arbiter of its exercise, its execution must be decreed.ss A power of sale may be imperative though a discretion is given an executor as to the time of sale, and the court, upon proof of unreasonable delay, will compel him to act. 89 When the donee of an imperative power in trust dies without executing it, equity will decree the title in those persons for whose benefit the power was created.00 465. Beneficiaries of power in trust-Shares-Statute-When a disposition under a power is directed to be made to or among several persons, without any specification of the share or sum to be allotted to each, all the persons designated shall be entitled to an equal proportion. But when the terms of the power import that the estate or fund is to be distributed among the persons so designated, in such manner or proportion as the trustee of the power may think proper, the trustee may allot the whole to any one or more of such persons, in exclusion of the others.91 466. Discretionary powers-A power is discretionary if its exercise is left to the discretion of the grantee of the power.92 467. Devise in general terms with absolute power of dispositionStatutes-At common law, if an estate is given to a person generally or Smith v. Glover, 50 Minn. 58, 68, 52 N. W. 210, 912; 22 A. & E. Ency, of Law (2 ed.) 1092: 31 Cyc. 1041; 21 R. C. L. 773; 49 McKinney's Consol. Laws, N. Y. § 137. 86 G. S. 1913, §§ 6750, 6751; Atwater v. Russell, 49 Minn. 57, 84, 51 N. W. 629; 22 A. & E. Ency. of Law (2 ed.) 1093; 31 Cyc. 1094; 49 McKinney's Consol. Laws, N. Y. § 157. 87 Tilden v. Green, 130 N. Y. 29, 28 N. E. S80. ss Smith v. Floyd, 140 N. Y. 337, 35 N. E. 606. 89 Haight v. Brisbin, 96 N. Y. 132; Walbridge v. Brooklyn Trust Co., 128 N. Y. S. 686. 90 Towler v. Towler, 142 N. Y. 371, 36 N. E. 869; Smith v. Floyd, 140 N. Y. 337, 35 N. E. 606. 91 G. S. 1913, §§ 6752, 6753; St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 131, 67 N. W. 657; Faloon v. Flannery, 74 Minn. 38, 76 N. W. 954; 49 McKinney's Consol. Laws, N. Y. § 158. 92 Ness v. Wood, 42 Minn. 427, 44 N. W. 313; Ness v. Davidson, 49 Minn. 469, 479, 52 N. W. 46. indefinitely, with an absolute power of disposition, it carries a fee, unless the testator gives to the first taker an estate for life only, and annexes to it a power of disposition of the reversion. In that case the express limitation for life will control the operation of the power, and prevent it from enlarging the estate into a fee." It is provided by statute that when an absolute power of disposition, not accompanied by any trust, is given to any person to whom no particular estate is limited, such person shall take a fee, subject to any future estate that may be limited thereon, but absolute in respect to creditors and purchasers.94 In such cases, if no remainder is limited on the estate of the grantee of the power of disposition such grantee is entitled to an absolute fee.95 468. Testamentary powers to sell and convey realty-No particular form of words is necessary to create a testamentary power to sell and convey realty. plied from the general scope and tenor of the will or from a direction to sell. It may be implied from a limitation over after a life estate of "whatever remains," "whatever remains undisposed of," and like phrases. It is not implied from a bare direction to pay debts and legacies."" 98 A power of sale need not be express, but may be im 98 In re Oertle's Estate, 34 Minn. 173, 178, 24 N. W. 924; Ogilvie v. Wright, 140 Tenn. 114, 203 S. W. 753; 30 A. & E. Ency. of Law (2 ed.) 736, 750; 40 Cyc. 1580. See § 432. The power of disposition must be absolute. If it is limited to the use and benefit of the devisee for his life a different rule applies. See § 431. 94 G. S. 1913, § 6736; Hershey v. Meeker County Bank, 71 Minn. 255, 265, 73 N. W. 967; 30 A. & E. Ency, of Law (2 ed.) 736; 40 Cyc. 1580; 49 McKinney's Consol. Laws, N. Y. § 150. See § 432. 95 G. S. 1913, § 6737; 30 A. & E. Ency. of Law (2 ed.) 736; 40 Cyc. 1580; 49 McKinney's Consol. Laws, N. Y. § 151. See § 432. 96 See Simpson v. Cook, 24 Minn. 180; Officer v. Simpson, 27 Minn. 147, 6 N. W. 488; Greenwood v. Murray, 28 Minn. 120, 125, 9 N. W. 629; In re Oertle's Estate, 34 Minn. 173, 177, 24 N. W. 924; Cheever v. Converse, 35 Minn. 179, 28 N. W. 217; Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056; Ness v. Wood, 42 Minn. 427, 44 N. W. 313; Brown v. Morrill, 45 Minn. 483, 491, 48 N. W. 328; Atwater v. Russell, 49 Minn. 22, 51 N. W. 624; Ness v. Davidson, 49 Minn. 469, 479, 52 N. W. 46; Lovejoy v. McDonald, 59 Minn. 393, 61 N. W. 320; Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020; St. Paul Trust Co. v. Mintzer, 65 Minn. 124, 131, 67 N. W. 657; Hershey v. Meeker County Bank, 71 Minn. 255, 73 N. W. 967; Merriam v. Wagener, 74 Minn. 215, 77 N. W. 44; Ashton v. Great Northern Ry. Co., 78 Minn. 201, 80 N. W. 963; Semper v. Coates, 93 Minn. 76, 100 N. W. 662: Long v. Willsey, 132 Minn. 316, 320, 156 N. W. 349; Whittaker v. Meeds, 146 Minn. 160, 178 N. W. 597; In re Meldrum's Estate, 149 Minn. 342, 183 N. W. 835;. 22 A. & E. Ency, of Law (2 ed.) 1155; 18 Cyc. 320; 31 Id. 1044; 40 Id. 1823; 24 C. J. 155; 11 R. C. L. 398 32 L. R. A. (N. S.) 676. 97 In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924; Greenman v. McVey, 126 Minn. 21, 147 N. W. 812; 11 A. & E. Ency. of Law (2 ed.) 1043; 18 Cyc. 320; 31 Cyc. 1044; 40 Cyc. 1823; 24 C. J. 156; 11 R. C. L. 398; 32 L. R. A. (N. S.) 676; Ann. Cas. 1916D, 410; 4 Probate Reports Ann. 395. 98 In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924; Webb v. Webb, 130 Iowa 457, 104 N. W. 438; 30 A. & E. Ency, of Law (2 ed.) 736; 40 Cyc. 1824; Woerner, Am. Law of Adm. (2 ed.) § 343. See Southwick v. Southwick, 184 Iowa 336, 168 N. W. 807. 99 Hill v. Den, 54 Cal. 6; Owen v. El It is not implied from a bare charge of debts or legacies on the realty.1 But a power of sale is implied where the testator directs the payment of debts and legacies out of the proceeds of realty or otherwise manifests an intention that they should be paid from such a source. Where the will treats the entire estate as personalty and directs all gifts to be paid in money there is implied power to sell. A power to sell is often implied from such phrases as "divide," "gather and divide,” “manage and divide,” “divide and pay," "divide and invest," "manage and pay over," "collect and pay over," "invest," "lend," "hold and invest," "loan," "put at interest." A power of sale is implied where there is a direction that the realty be sold, without stating by whom it shall be sold, if the executor has charge of the application of the proceeds. A charge of debts and a charge of legacies stand on the same footing as regards an implication of power to sell. A power to a tenant for life to sell or devise the remainder in fee is a general, beneficial power and not a power in trust. It gives to the holder of the power the absolute legal title in fee by virtue of the statute, so far as creditors and purchasers are concerned. Where a will gives to executors a power to sell and convey, an administrator with the will annexed has the same power.s Where executors are given a naked power of sale the title passes to the devisee subject to the exercise of such power. The execution of a power in a will does not stand on the same footing as the execution of a power given by law. The power in a will is contractual, not statutory. When a power in a will is defectively executed equity will decree its proper execution.10 Giving a power of sale does not amount to a direction to sell, nor does it have any bearing on the question of the testator's intention to direct by implication a conversion of realty into lis, 64 Mo. 77; 11 A. & E. Ency. of Law (2 ed.) 1043; 31 Cyc. 1046; 24 C. J. 158; 32 L. R. A. (N. S.) 687; Ann. Cas. 1916D, 421. 1 In re Fox, 52 N. Y. 530; Worley v. Taylor, 21 Or. 589, 28 Pac. 903; Potter v. Brown, 11 R. I. 232; 11 A. & E. Ency. of Law (2 ed.) 1045; 18 Cyc. 320; 31 Cyc. 1046; 24 C. J. 159; 32 L. R. A. (N. S.) 637; Ann. Cas. 1916D, 426. 2 11 A. & E. Ency. of Law (2 ed.) 1043; 31 Cyc. 1047; 24 C. J. 158; 32 L. R. A. (N. S.) 694; Ann. Cas. 1916D, 419. 3 Webster v. Morris, 66 Wis. 366, 28 N. W. 353. See 32 L. R. A. (N. S.) 684. 4 11 A. & E. Ency. of Law (2 ed.) 1046; 31 Cyc. 1047; 24 C. J. 159; 32 L. R. A. (N. S.) 680-694; Ann. Cas. 1916D, 428440. 5 Hale v. Hale, 137 Mass. 168; Lippincott v. Lippincott, 19 N. J. Eq. 121; 11 A. & E. Ency. of Law (2 ed.) 1046; 31 6 Potter v. Brown, 11 R. I. 232. 7 Hershey v. Meeker County Bank, 71 Minn. 255, 73 N. W. 967; Ashton v. Great Northern Ry. Co., 78 Minn. 201, 80 N. W. 963. See Semper v. Coates, 93 Minn. 76, 100 N. W. 662; and § 432. 8 Cheever v. Converse, 35 Minn. 179, 28 N. W. 217. See §§ 1162, 1163. 9 In re Oertle's Estate, 34 Minn. 173, 177, 24 N. W. 924; Ness v. Davidson, 45 Minn. 424, 48 N. W. 10. See Ness v. Wood, 42 Minn. 427, 44 N. W. 313; Whittaker v. Meeds, 146 Minn. 160, 178 N. W. 597. 10 Babcock v. Collins, 60 Minn. 73, 61 N. W. 1020. See § 480. 11 personalty. Where a will contains a power of sale, not mandatory in terms, but it is apparent from the general scope and tenor of the will, that the testator intended all his property to be sold, the power of sale will be deemed imperative and the doctrine of equitable conversion applied. A will contained a provision authorizing the executors to sell real estate as follows: "And they may sell or mortgage any of my real estate at any time it may become necessary to do so, to pay any expenses or bequests herein provided for, or for the purpose of saving or improving any other portion of my said property, while the same is undistributed." Held, that the power was not absolute or unconditional, but could only be exercised for the purposes specified; that if the conditions existed calling for an exercise of the power the executors had a reasonable discretion as to the mode and circumstances of its exercise, though they must act in good faith and reasonable prudence; that whether the conditions specified for the exercise of the power existed was a question of fact and not of discretion; that no estate in the lands was granted to the executors, in trust or otherwise, but merely a naked power of sale; that if there was a necessity for making a sale they were not authorized to sell property of an amount and value grossly in excess of that necessary to realize the amount needed.12 A power of disposition may be restricted to the lifetime and not include a power to dispose of by will.13 Devisees cannot incumber the real estate so that grantees of a power of sale in the will would have to sell subject to such incumbrance. To permit that would enable them to obstruct and perhaps defeat the execution of the power.1 It is not necessary that the clause creating a power of sale shall designate the person or class of persons entitled to the proceeds of sales. The entire will may be referred to in order to ascertain who, according to the intention of the testator, is the person or class of persons entitled to the proceeds. If the will does not direct that the proceeds of a sale shall be paid to or used for the benefit of any one but the devisees whose lands are made subject to the power they are entitled to the benefits derived from an exercise of the power. In such case the devise comes to them in a substituted form. They receive the proceeds of the sale in lieu of the land itself. The question is one of intention and not of the mode of expressing it.15 A power to executors read, "I hereby authorize and empower them, or the survivor or successors of them, to sell and convey to any person or persons, and upon such terms as to them may seem advisable, any real estate that may come into their possession and control under this will, and to give proper deeds of conveyance thereof," 11 Greenman v. McVey, 126 Minn. 21, 147 N. W. 812. 12 Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056. 13 In re Ithaca Trust Co., 220 N. Y. 437, 116 N. E. 102. 14 Ness v. Davidson, 45 Minn. 424, 48 N. W. 10. '15 Ness v. Davidson, 45 Minn. 424, 48 N. W. 10. 17 with a similar power with respect to personal property. Held, that the power applied to all the testator's real estate; that it was a valid power in trust, that it was not a beneficial power; that the will not directing any other disposition of the proceeds of the alienation of the real estate, the devisees are to be regarded as designated as the persons entitled to such proceeds; that certain instruments executed by the executors under the power did not show that they conveyed the real estate subject to mechanics' liens upon the interest of one of the devisees.1o It is sometimes uncertain whether a power of sale is to a wife as legatee or devisee or as executrix. In either event the court will carry it into effect. Where a wife is given a life estate with a power of disposition, and the executor is also given a power of sale, the latter power may operate as a restraint on the former, but the several clauses of the will must be construed together and in subordination to the purpose of the testator as manifested by the will as a whole, and the power given to the executor must be exercised so as to secure to the widow the benefit of the estate as provided by the will.18 Wills frequently give a life estate to the wife of the testator, with a power of disposition for her use and benefit during life, remainder to the children of the testator. In such case the wife can convey a good title to bona fide purchasers, but she cannot invade and consume the corpus beyond what is necessary for her reasonable support. The proceeds of a sale belong to the children subject to the life interest of the wife, who occupies a fiduciary relation toward the children. The rights of the children will be protected by the courts.19 A power given to an executor to sell realty and distribute the proceeds does not authorize him to exchange it for other land. 20 469. Death of donee of power before testator-A power created by will lapses if the donee of the power dies before the testator.21 470. Power to mortgage realty-Wills frequently contain an express power to mortgage realty.22 A mere naked power to sell given to an agent or attorney or to the trustee of an ordinary trust does not include a power to mortgage by implication. Such a power is to be strictly construed. But a testamentary power in favor of the beneficiaries of the will is to be liberally construed to carry out the intentions of the 16 Ness v. Davidson, 45 Minn. 424, 48 N. W. 10. 17 Chamberlain v. Husel, 178 Mich. 1, 144 N. W. 549. 18 In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924. 19 In re Oertle's Estate, 34 Minn. 173, 24 N. W. 924; In re Meldrum's Estate, 149 Minn. 342, 183 N. W. 835; Abbott v. Wagner (Neb.) 1SS N. W. 113. 20 Trimboli v. Kinkel, 226 N. Y. 147, 123 N. E. 205. 21 Curley v. Lynch, 206 Mass. 289, 92 N. E. 429; Smith v. Browne, 222 N. Y. 222, 118 N. E. 611. 22 Townshend v. Goodfellow, 40 Minn. 312, 317, 41 N. W. 1056; Brown v. Morrill, 45 Minn. 483, 48 N. W. 328; Merriam v. Wagener, 74 Minn. 215, 77 N. W. 44: In re Meldrum's Estate, 149 Minn. 342, 183 N. W. 835. |