Berger v. Duff

4 Johns. Ch. 368, 1820 N.Y. LEXIS 144, 1820 N.Y. Misc. LEXIS 18

Opinion

The Chancellor.

The executors cannot sell by attorney. The power given to them, by the will, was a personal trust and confidence, to be exercised by them jointly, according to their best judgment, under the circumstances contemplated by the will. One executor in this case cannot commit his judgment and discretion to the other, any more than to a stranger; for, delegatus non potest delegarL The testator intended, that his representatives should have the benefit of the judgment of each of the executors applied to the given case, so long as both of them were alive. The agreement to sell was not valid, being made by one executor, without the personal assent and act of the other. The power was not capable of transmission or delegation from one executor to the other, and the rule of law and equity, on this point, is perfectly well settled. (9 Co. 75. Comb’s case. Ingram v. Ingram, 2 Atk. 88. Sir Thomas Clarke, in Alexander v. Alexander, 2 Ves. 643. Lord Hardwicke, in Attorney General v. Scott, 1 Ves. 417. Lord Redesdale, in 2 Sch. & Lef. 330. Hawkins v. Kemp, 3 East, 410. Sugden on Powers, (2d edit.) 167.)

The agreement was not, therefore, a due execution of the power under the will, and the bill must be dismissed with- ' out costs.

Bill dismissed.