Giberson v. Giberson

43 N.J. Eq. 116

• Court: New Jersey Court of Chancery
• Decided: May 15, 1887
• Status: Published

Opinion

Bird, V. C.

Joseph Giberson, by his last will, gave all the residue of his real estate to his children, to be equally divided amongst them, ■and then ordered and directed his executors to sell all of the said estate “at such times and in such manner as they shall think most advisable.” The executors therein named renounced, and an administrator with the will annexed was appointed. Doubts having been suggested as to his power to sell, this bill is presented.

In my judgment, this case is plainly within the act which confers the same powers of sale upon administrators with the-will annexed that the executors had by the will. I cannot perceive that the executors had confided to them any trust or-discretion such as is contemplated in the case of Naundorf v. Schumann, 14 Stew. Eq. 14, and in other cases. In. the case-cited, the executor had power to dispose of as he should deem, best. He might rent it, for he was directed to divide the profits. In this case there is nothing but the power of sale conferred. But it is thought that the discretion Contemplated in' Naundorf v. Schumann, supra, is distinctly expressed in the phrase “ at such times and in such manner as they shall think most advisable.” I do not see any such force in the expression. I think the executors are directed to sell and nothing more. I think they have no other or greater power, right, trust or discretion than they would have had, had the words quoted been omitted. I think every executor has just so much right, power, trust or discretion when simply authorized to sell. Every such executor can sell at such times and in such manner as he deems most advisable. All will readily acknowledge that he has that much discretion, and that if he does not exercise it wisely the courts will interfere. Tor will any one insist that such admission brings the case within the principle of Naundorf v. Schumann. It is only giving practical effect to a wise provision of the statute in a case where the testator has not himself otherwise provided. And if the case I am deciding is not controlled by Naundorf v. Schumann, certainly it is not by Lanning v. Sisters of St. Francis, 8 Stew. Eq. 392. In that case the trust seemed most clearly to be a personal one; the real estate was given to the person named as executor absolutely; besides which his control seemed only to terminate when he saw- proper to sell and divide.

In construing the force or extent of such enabling statute, the inquirer will be aided by the views of Chief-Justice Beasley as expressed in Weimar v. Fath, 14. Vr. 1, 11, one quotation will suffice: “ But the discretion thus appealed to is nothing but the common discretion that is made use of in the transaction of ordinary business.”

I think the administrator with the will annexed can convey a good title. I will so advise.