TYSON, C. J.
— The equity of the bill in this cause was determined on former appeal. — Rutledge v. Cram-ton, 150 Ala. 275, 43 South. 822. It was then held that the partition proceedings in the probate court for the sale of the land here in controversy, upon the petition of Mrs. Bell, who took a life estate under the will of her husband, and to whom was committed the authorization “to sell and dispose of such portions of my (testator’s) estate as she may think best, either- at public or private sale and upon such terms as she may deem advisable,” was not an execution of the power conferred by the will. The holding seems to have been predicated upon certain statutes. Independent of and aside from these statutes, the conclusion reached was clearly correct, for the obvious reason that the power conferred reposed in Mrs. Bell a personal trust and confidence to exercise her own judgment or discretion, which could be discharged only by [148]*148lier personally. In other words, she could not delegate the execution of the power to the probate court to become for her, in her stead, the vendor of the property. There could be no substitution of the judgment of that tribunal for hers in determining the manner of exposing the property to sale and the terms of sale, which had been expressly confided to her. —Chambers v. Tulane, 9 N. J. Eq. 146; Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. 609; Lanning v. St. Francis Hospital, 35 N. J. Eq. 392, 400; Saunders v. Webber, 39 Cal. 287; Suarez v. Pumpelly, 2 Sandf. Ch. (N. Y.) 336; Conklin v. Egerton’s Adm’r. 21 Wend. (N. Y.) 430; Whitlock v. Washburn, 62 Hun. 369, 17 N. Y. Supp. 60; Wills v. Couper, 2 Ohio 124.
In the leading case of Bulteel v. Abinger, 6 Jur. 412, one of the trustees declined to take any part in the sale of the trust property, other than to authorize his co-trustee to sell the estate under their powers. A sale was effected by this co-trustee accordingly, and on a bill for specific performance, brought by the vendee, it was held, first, that the fact of the trustees being also executors did not give each trustee, qua trustee, authority to deal exclusively with the property; and, second, that Lord Abinger could not lawfully delegate to his co-trustee an authority to sell the estate of his son, without reserving to himself a veto on the contract. In Hill on Trustees, p. 474, it is held that a trustee is not justified in delegating the power of sale to a stranger, nor even to a co-trustee. In Hawley v. James, 5 Paige (N. Y.) 487, the principle is thus .stated: “A trustee who has only a delegated discretionary power cannot give general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power.” And in Pearson v. Jamison, 1 McLean, 197, Fed. Cas. No. 10-879, it is held: “Where an executor by [149]*149the will is empowered to sell real estate in the best mode in his judgment for the interest of the estate, he cannot delegate the power to- another.” In Berger v. Duff, 4 Johns. Ch. (N. Y.) 368, the case was this: The testator authorized his executors, B. and 0., to sell certain lots of land, if under the circumstances of the times they should deem it prudent; and 0. having gone abroad, sent a power of attorney to his co-executor to sell the land on such terms as he should deem expedient. Held, that an agreement for the sale, entered into by B., for himself and 0., was not valid, and a bill filed for specific performance of it was accordingly dismissed. The Chancellor, in deciding the case, said: “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.” Numerous other authorities "might be cited, and quotations indulged; but these will suffice to establish the want of capacity in Mrs. Bell to transmit to the probate court the right to exercise the power, conferred upon her personally, to sell the lands. And perhaps this is the principle upon which the ruling should have been placed upon former appeal, rather than upon the statutes cited in response to the application for rehearing.
But, Should we concede that Mrs. Bell could have delegated her power to sell the land to the probate court, it is not made to appear that it was her intention to execute the power by and through the partition proceeding had therein. The petition filed by her jointly with another nowhere refers to the power. That she owned a life estate in the land cannot be denied; a,nd that she had the right, as owner of such an estate, to have the land sold for division, does not seem to have ever been [150]*150questioned in this jurisdiction. The only doubt that has ever been entertained was whether she, as the owner of the life estate, could have compelled the remainder-men to unite with her in the suit, or have compelled a partition which would have been binding after the termination of her life estate by making the remainder-men parties. —McQueen v. Turner, 91 Ala. 276, 8 South. 863. Having the right, as owner of a life estate to institute and maintain the partition proceeding for a sale of the land, how can it be affirmed with any degree of certainty that she was not proceeding in that right, but in her right as a donee of the power under the will? There is nothing in the petition filed by her, or shown by the record of that proceeding, which makes it clearly appear that it had been her intention to execute the power; and if it be uncertain whether it was her intention to execute the power and thereby sell the entire life estate, the execution of the power is not shown. When the circumstances, as here, are so equivocal as to leave the mind in doubt whether an execution of the power was at all intended, it must be held that it was not executed. To put the proposition in the language of Mr. Story: “For if he' [the donee of the power] leaves it uncertain whether the act is done in execution of the power or not, it will not be construed to be an execution of the power.” 2 Story, Eq. Jur. § 1062; 22 Am. & Eng. Ency. Law, p. 1113, and cases cited in note 2.
There is no pretense that the remaindermen, from whom the complainants claimed to have derived title, were parties to the partition proceeding. Indeed, the record of that proceeding shows that they were not, and clearly, in order to sell their estate in the land, it was necessary that they should have been parties. —Gayle v. Johnston, 80 Ala. 395; Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53; McQueen v. [151]*151Turner, supra. It results that it must be held that these complainants have the title to the land as tenants in common with the respondent, Cramton, unless they have • been dispossessed of it otherwise than by the partition proceedings. On the facts alleged in the fourth paragraph of the answer,- which is made a plea, it is clear that Cramton acquired the title to the life estate of Mrs. Bell, and to the estate of the other parties to the partition proceeding, and that of T. Howard Bell thereby making him (Cramton), as we have said a tenant in common with complainants. It is also true that this relation existed between the remaindermen under the will and those through whom Cramton derived his title. The plea, therefore, is wholly bad, as one setting up a title superior to that of the complainants.
Free access — add to your briefcase to read the full text and ask questions with AI
TYSON, C. J.
— The equity of the bill in this cause was determined on former appeal. — Rutledge v. Cram-ton, 150 Ala. 275, 43 South. 822. It was then held that the partition proceedings in the probate court for the sale of the land here in controversy, upon the petition of Mrs. Bell, who took a life estate under the will of her husband, and to whom was committed the authorization “to sell and dispose of such portions of my (testator’s) estate as she may think best, either- at public or private sale and upon such terms as she may deem advisable,” was not an execution of the power conferred by the will. The holding seems to have been predicated upon certain statutes. Independent of and aside from these statutes, the conclusion reached was clearly correct, for the obvious reason that the power conferred reposed in Mrs. Bell a personal trust and confidence to exercise her own judgment or discretion, which could be discharged only by [148]*148lier personally. In other words, she could not delegate the execution of the power to the probate court to become for her, in her stead, the vendor of the property. There could be no substitution of the judgment of that tribunal for hers in determining the manner of exposing the property to sale and the terms of sale, which had been expressly confided to her. —Chambers v. Tulane, 9 N. J. Eq. 146; Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. 609; Lanning v. St. Francis Hospital, 35 N. J. Eq. 392, 400; Saunders v. Webber, 39 Cal. 287; Suarez v. Pumpelly, 2 Sandf. Ch. (N. Y.) 336; Conklin v. Egerton’s Adm’r. 21 Wend. (N. Y.) 430; Whitlock v. Washburn, 62 Hun. 369, 17 N. Y. Supp. 60; Wills v. Couper, 2 Ohio 124.
In the leading case of Bulteel v. Abinger, 6 Jur. 412, one of the trustees declined to take any part in the sale of the trust property, other than to authorize his co-trustee to sell the estate under their powers. A sale was effected by this co-trustee accordingly, and on a bill for specific performance, brought by the vendee, it was held, first, that the fact of the trustees being also executors did not give each trustee, qua trustee, authority to deal exclusively with the property; and, second, that Lord Abinger could not lawfully delegate to his co-trustee an authority to sell the estate of his son, without reserving to himself a veto on the contract. In Hill on Trustees, p. 474, it is held that a trustee is not justified in delegating the power of sale to a stranger, nor even to a co-trustee. In Hawley v. James, 5 Paige (N. Y.) 487, the principle is thus .stated: “A trustee who has only a delegated discretionary power cannot give general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power.” And in Pearson v. Jamison, 1 McLean, 197, Fed. Cas. No. 10-879, it is held: “Where an executor by [149]*149the will is empowered to sell real estate in the best mode in his judgment for the interest of the estate, he cannot delegate the power to- another.” In Berger v. Duff, 4 Johns. Ch. (N. Y.) 368, the case was this: The testator authorized his executors, B. and 0., to sell certain lots of land, if under the circumstances of the times they should deem it prudent; and 0. having gone abroad, sent a power of attorney to his co-executor to sell the land on such terms as he should deem expedient. Held, that an agreement for the sale, entered into by B., for himself and 0., was not valid, and a bill filed for specific performance of it was accordingly dismissed. The Chancellor, in deciding the case, said: “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.” Numerous other authorities "might be cited, and quotations indulged; but these will suffice to establish the want of capacity in Mrs. Bell to transmit to the probate court the right to exercise the power, conferred upon her personally, to sell the lands. And perhaps this is the principle upon which the ruling should have been placed upon former appeal, rather than upon the statutes cited in response to the application for rehearing.
But, Should we concede that Mrs. Bell could have delegated her power to sell the land to the probate court, it is not made to appear that it was her intention to execute the power by and through the partition proceeding had therein. The petition filed by her jointly with another nowhere refers to the power. That she owned a life estate in the land cannot be denied; a,nd that she had the right, as owner of such an estate, to have the land sold for division, does not seem to have ever been [150]*150questioned in this jurisdiction. The only doubt that has ever been entertained was whether she, as the owner of the life estate, could have compelled the remainder-men to unite with her in the suit, or have compelled a partition which would have been binding after the termination of her life estate by making the remainder-men parties. —McQueen v. Turner, 91 Ala. 276, 8 South. 863. Having the right, as owner of a life estate to institute and maintain the partition proceeding for a sale of the land, how can it be affirmed with any degree of certainty that she was not proceeding in that right, but in her right as a donee of the power under the will? There is nothing in the petition filed by her, or shown by the record of that proceeding, which makes it clearly appear that it had been her intention to execute the power; and if it be uncertain whether it was her intention to execute the power and thereby sell the entire life estate, the execution of the power is not shown. When the circumstances, as here, are so equivocal as to leave the mind in doubt whether an execution of the power was at all intended, it must be held that it was not executed. To put the proposition in the language of Mr. Story: “For if he' [the donee of the power] leaves it uncertain whether the act is done in execution of the power or not, it will not be construed to be an execution of the power.” 2 Story, Eq. Jur. § 1062; 22 Am. & Eng. Ency. Law, p. 1113, and cases cited in note 2.
There is no pretense that the remaindermen, from whom the complainants claimed to have derived title, were parties to the partition proceeding. Indeed, the record of that proceeding shows that they were not, and clearly, in order to sell their estate in the land, it was necessary that they should have been parties. —Gayle v. Johnston, 80 Ala. 395; Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53; McQueen v. [151]*151Turner, supra. It results that it must be held that these complainants have the title to the land as tenants in common with the respondent, Cramton, unless they have • been dispossessed of it otherwise than by the partition proceedings. On the facts alleged in the fourth paragraph of the answer,- which is made a plea, it is clear that Cramton acquired the title to the life estate of Mrs. Bell, and to the estate of the other parties to the partition proceeding, and that of T. Howard Bell thereby making him (Cramton), as we have said a tenant in common with complainants. It is also true that this relation existed between the remaindermen under the will and those through whom Cramton derived his title. The plea, therefore, is wholly bad, as one setting up a title superior to that of the complainants.
By the fifth plea the defense of adverse possession for ten years is attempted to be invoked, to defeat the complainants’ title. This defense is expressly predicated upon the facts alleged in the fourth plea, with respect to the possession of Cramton and those through whom he claims. With respect to the possession of those persons, as owners of the life estate of Mrs. Bell, in this jurisdiction, it is not possible for that possession to have become adverse until after her death, for the obvious reason that the right of the remaindermen to enter, or to sue for the establishment or recovery of their interest, never arose until after her death. —Edwards v. Bender, 121 Ala. 77, 25 South. 1010, and cases there cited; Washington v. Norwood, 128 Ala. 390, 391 30 South. 405; Bolen v. Hoven, 143 Ala. 625, 39 South. 379; Hinton v. Farmer, 148 Ala. 211, 42 South. 563. As to their possession as tenants in common, it is prima facie presumed to be thfe possession of all, and could never become adverse to the complainants and those through whom they derived title, unless there was an actual ous[152]*152ter of them, or unless the adverse character of their possession was so open and notorious in its hostility and exclusiveness as to put their co-tenants on nuti.ce of its adverse character, after their right to the possession accrued — which was, of course, after the death of Mrs. Bell, the life tenant. —Ashford v. Ashford, 136 Ala. 631, 640, 34 South. 10, 96 Am. St. Rep. 82; Hamby v. Folsam, 148 Ala. 221, 42 South. 548. Applying these principles to the facts averred Avith respect to the possession, it is entirely clear that the plea is insufficient.
That portion of plea 7 which attempts to defeat the right of T. J. Rutledge, because at the time he acquired his interest in the land the respondent was in the actual and exclusive possession of it, is insufficient, for the reason above stated, and for the additional reason that, if the averment as to possession could, by any sort of construction, be held to have been adverse — which it cannot — the principle which makes conveyances of lands Amid if executed Avhen a third person is in the adverse possession of them, has no application where, as here, the interest or estate is acquired by devolution under the statutes. The reason for holding conveyances Amid under such circumstances is to prevent maintenance and champerty. The other1 defense attempted to be asserted by this plea is not sufficiently stated, for the reason assigned with respect to the insufficiency of plea 5.
Plea 6 is fonnded upon the same facts set out in the fourth plea, and attempts to invoke an estoppel against the complainant T. J. Rut-ledge. Its sufficiency does not seem to be insisted on in brief of appellant’s counsel. But, if insistence were made, the plea is clearly bad. Not a single element of estoppel' is averred.
The ninth paragraph: of the answer was not made a plea, as seems to be supposed by appellant’s counsel. [153]*153We cannot assume that it was so treated by the court below.
Finding no error in the record, the decree appealed from must be affirmed.
Affirmed.
Haralson, Simpson, and Denson, JJ., concur.