The opinion of the court was delivered by
McIyee, A. J.
The principal object of this action was to have the sale of a certain tract of land set aside, the deed given therefor cancelled, and an account from the purchaser for the rents and profits since the sale. Indeed the only question made by the appeal is as to the validity of the sale.
[237]*237The land in question originally belonged to P. L. Calhoun, who died some time in the year 1863, having first duly made and executed his last will and testament, which bears date August 1st, 1861. The clause of the will which, it is claimed, contains the power of sale under which the executor acted, is as follows : “ I desire that my executors, hereinafter to be named, shall sell all my estate, both real and personal, of what nature or quality soever it may be, so soon as the value of property shall recover from the' depression caused by the existing war •” and after providing for the payment of his debts and the distribution of the remainder, the testator appointed Dr. A. G. Teague and his son, J. C. Calhoun, executors, the former of whom alone qualified. On the same day that Dr. Teague qualified as executor, he obtained from the Ordinary an order for the sale of the personalty, and on October 27th, 1863, after due advertisement, the whole estate, both real and personal, was sold for cash, in Confederate money, in accordance with the suggestions^and advice of the appraisers, and a due return of the sale-bill made to the Ordinary on November 10th, 1863. This sale was attended by many of the parties now seeking to set it aside, some of whom be'came purchasers to a large amount. No objections appear to have been made to the sale by any of the persons interested under the will, though there is evidence that the plaintiff, W. D. Jennings, who was a creditor of the estate, did object to having the property sold for Confederate money, though his objections do not seem to have been communicated to the defendant, Martin, who was the largest purchaser at the sale, he having bid off the land now in controversy for the sum of $32,000, paid his bid in cash, in Confederate money, and received a deed from the executor. Jennings, also, notwithstanding his objections, became a purchaser at the sale to an amount not inconsiderable, a part of which, however, was, as he says, for the benefit of the widow and part for a young lady to whom he owed some money, while the remainder was for his wife. In about two months after the sale the widow of the testator, before the plaintiff, W. D. Jennings, as a notary public, formally released all her interest and estate, and all her claim of dower in the land sold to Martin, the purchaser at the executor’s sale; and some of the parties interested [238]*238received from the executor, out of the proceeds of sale, large amounts of money.
It is very clear that at the time all parties interested considered the sale a good and valid sale, and that there is not a shadow of ground for saying that there was any fraud or concealment, or misrepresentation which would tend to invalidate it. On the contrary, all the circumstances go to show that the sale was, at the time, satisfactory to all parties concerned, unless it be W. I>. Jennings, who, as a creditor,, may be regarded as interested in the estate. But even he, taking all his conduct together, can scarcely be regarded as making any opposition to the sale, but merely expressing a dissatisfaction with the terms of sale by which purchasers were allowed to pay their bids in Confederate money.
But, conceding all this, the validity of the sale is challenged upon the ground of a want of power in the executor to make the sale. First. Because there were two executors appointed, and one could not sell even though the other never qualified. Second. Because the power to sell was conditional, and as the condition never happened the power never vested. As to the first ground, it is very clear that it cannot be sustained. The very object of the statute (21 Henry VIII., Oh. IV, 2 Stat. 457,) which was in force at the time this sale was made, was to obviate this objection. Britton v. Lewis, 8 Rich. Eq. 271.
As to the second ground, it is quite clear that the power of sale was a conditional one, and it is equally clear that the condition was, in its nature, precedent and not subsequent, and that, such being the case, until the condition was performed, or the contingency, upon which the power was conferred, happened, the-power could not be lawfully exercised. So that the real question in this case is, whether the contingency upon which the power to sell was given had happened at the time the sale was made, and as subsidiary to this, who was to determine whether the contingency had happened. To solve these questions it will be necessary to inquire what was the nature of the condition. Was it the happening of a distinct and independent fact, or was it a condition, which, in its very nature, involved the exercise of judgment or discretion for the determination of whether it had hap[239]*239pened, and about which, therefore, there might well be, as there was in this very case, honest difference of opinion. It certainly was not a distinct and independent fact, as if the testator had provided that the executor should sell when a certain person should attain to a certain age, but it was a condition, the happening of which could only be determined by an exercise of judgment. When the value of property should recover from a depression caused by a war, or by any other special circumstance, must necessarily be a question to be determined by the exercise of judgment — one about which persons might and probably would honestly differ. What was to be the extent of the recovery which would authorize a sale ? Somebody must judge of this, and if the executor is not permitted to do so, then it is difficult to suggest who could. If the executor commits an error of judgment in determining such a question, that, certainly, ought not to invalidate a sale made by him in the honest exercise of his judgment. If it did, then it would be impossible to tell, until after it was tested by a judicial proceeding, whether any sale made under such a power was valid, and if such a rule be established it would destroy all chances of making such a sale, for, certainly, no one would buy with the prospect of having his title inquired into and assailed years after upon the ground that the executor had committed an error of judgment in determining a question which was left to his discretion.
It is perfectly manifest that the testator in this case intended to invest his executor with power to sell in a certain contingeucy, the happening of which must necessarily be determined by an exercise of judgment, and unless his executor — the person whom he has selected as possessing more of his confidence than any one else — is authorized to determine this question, then the purpose of conferring upon the executor the power to sell would be practically defeated. That purpose, doubtless, was to avoid the necessity of obtaining an order of the court for the sale, which would involve delay and expense; but if the executor is denied the power of determining the time for the sale, or if his honest determination is liable to be revised and reversed by the court, then, clearly, it would have been better to have required a resort to the court in the first instance, rather than to give an apparent [240]
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The opinion of the court was delivered by
McIyee, A. J.
The principal object of this action was to have the sale of a certain tract of land set aside, the deed given therefor cancelled, and an account from the purchaser for the rents and profits since the sale. Indeed the only question made by the appeal is as to the validity of the sale.
[237]*237The land in question originally belonged to P. L. Calhoun, who died some time in the year 1863, having first duly made and executed his last will and testament, which bears date August 1st, 1861. The clause of the will which, it is claimed, contains the power of sale under which the executor acted, is as follows : “ I desire that my executors, hereinafter to be named, shall sell all my estate, both real and personal, of what nature or quality soever it may be, so soon as the value of property shall recover from the' depression caused by the existing war •” and after providing for the payment of his debts and the distribution of the remainder, the testator appointed Dr. A. G. Teague and his son, J. C. Calhoun, executors, the former of whom alone qualified. On the same day that Dr. Teague qualified as executor, he obtained from the Ordinary an order for the sale of the personalty, and on October 27th, 1863, after due advertisement, the whole estate, both real and personal, was sold for cash, in Confederate money, in accordance with the suggestions^and advice of the appraisers, and a due return of the sale-bill made to the Ordinary on November 10th, 1863. This sale was attended by many of the parties now seeking to set it aside, some of whom be'came purchasers to a large amount. No objections appear to have been made to the sale by any of the persons interested under the will, though there is evidence that the plaintiff, W. D. Jennings, who was a creditor of the estate, did object to having the property sold for Confederate money, though his objections do not seem to have been communicated to the defendant, Martin, who was the largest purchaser at the sale, he having bid off the land now in controversy for the sum of $32,000, paid his bid in cash, in Confederate money, and received a deed from the executor. Jennings, also, notwithstanding his objections, became a purchaser at the sale to an amount not inconsiderable, a part of which, however, was, as he says, for the benefit of the widow and part for a young lady to whom he owed some money, while the remainder was for his wife. In about two months after the sale the widow of the testator, before the plaintiff, W. D. Jennings, as a notary public, formally released all her interest and estate, and all her claim of dower in the land sold to Martin, the purchaser at the executor’s sale; and some of the parties interested [238]*238received from the executor, out of the proceeds of sale, large amounts of money.
It is very clear that at the time all parties interested considered the sale a good and valid sale, and that there is not a shadow of ground for saying that there was any fraud or concealment, or misrepresentation which would tend to invalidate it. On the contrary, all the circumstances go to show that the sale was, at the time, satisfactory to all parties concerned, unless it be W. I>. Jennings, who, as a creditor,, may be regarded as interested in the estate. But even he, taking all his conduct together, can scarcely be regarded as making any opposition to the sale, but merely expressing a dissatisfaction with the terms of sale by which purchasers were allowed to pay their bids in Confederate money.
But, conceding all this, the validity of the sale is challenged upon the ground of a want of power in the executor to make the sale. First. Because there were two executors appointed, and one could not sell even though the other never qualified. Second. Because the power to sell was conditional, and as the condition never happened the power never vested. As to the first ground, it is very clear that it cannot be sustained. The very object of the statute (21 Henry VIII., Oh. IV, 2 Stat. 457,) which was in force at the time this sale was made, was to obviate this objection. Britton v. Lewis, 8 Rich. Eq. 271.
As to the second ground, it is quite clear that the power of sale was a conditional one, and it is equally clear that the condition was, in its nature, precedent and not subsequent, and that, such being the case, until the condition was performed, or the contingency, upon which the power was conferred, happened, the-power could not be lawfully exercised. So that the real question in this case is, whether the contingency upon which the power to sell was given had happened at the time the sale was made, and as subsidiary to this, who was to determine whether the contingency had happened. To solve these questions it will be necessary to inquire what was the nature of the condition. Was it the happening of a distinct and independent fact, or was it a condition, which, in its very nature, involved the exercise of judgment or discretion for the determination of whether it had hap[239]*239pened, and about which, therefore, there might well be, as there was in this very case, honest difference of opinion. It certainly was not a distinct and independent fact, as if the testator had provided that the executor should sell when a certain person should attain to a certain age, but it was a condition, the happening of which could only be determined by an exercise of judgment. When the value of property should recover from a depression caused by a war, or by any other special circumstance, must necessarily be a question to be determined by the exercise of judgment — one about which persons might and probably would honestly differ. What was to be the extent of the recovery which would authorize a sale ? Somebody must judge of this, and if the executor is not permitted to do so, then it is difficult to suggest who could. If the executor commits an error of judgment in determining such a question, that, certainly, ought not to invalidate a sale made by him in the honest exercise of his judgment. If it did, then it would be impossible to tell, until after it was tested by a judicial proceeding, whether any sale made under such a power was valid, and if such a rule be established it would destroy all chances of making such a sale, for, certainly, no one would buy with the prospect of having his title inquired into and assailed years after upon the ground that the executor had committed an error of judgment in determining a question which was left to his discretion.
It is perfectly manifest that the testator in this case intended to invest his executor with power to sell in a certain contingeucy, the happening of which must necessarily be determined by an exercise of judgment, and unless his executor — the person whom he has selected as possessing more of his confidence than any one else — is authorized to determine this question, then the purpose of conferring upon the executor the power to sell would be practically defeated. That purpose, doubtless, was to avoid the necessity of obtaining an order of the court for the sale, which would involve delay and expense; but if the executor is denied the power of determining the time for the sale, or if his honest determination is liable to be revised and reversed by the court, then, clearly, it would have been better to have required a resort to the court in the first instance, rather than to give an apparent [240]*240power to the executor which would only serve to delude purchasers and result in greater delay and larger expense than if the will had required a resort to the court in the first instance. That these views are not without the support of authority, may be seen by reference to the case of Greer v. McBeth, 12 Rich. Eq. 254. The cases of McCants v. Bee, 1 McC. Ch. 383, and South Carolina R. R. Co. v. Toomer, 9 Rich. Eq. 270, relied upon by the appellants, do not, in our judgment, conflict with these views. In the former case the question was not really made, but it was suggested that the executor was willing to confirm a contract for the sale of a slave which had been made by the life tenant, abou. which the real controversy was, and the court, among severat other reasons why the executor could net make the sale, said that the power given to the executor was only to sell such property as was useless to the estate, and that the court could not suppose that this conferred a power to sell the slave in question, without assuming, which it would not do, that the executor was willing to commit a fraud, for there was another provision in the will directing the executor to increase the stock of that kind of property by investing the surplus funds of the estate in the purchase •of slaves; for if the court were at liberty to suppose that the slave was of such a description as to be useless to the estate, then it would have to suppose that the executor was willing to commit an actual fraud by imposing upon a female property which he knew to be worthless. In the case of Railroad Company v. Toomer, the condition upon which the power to sell was given was the happening of a distinct fact, and was not a condition which would have to be determined by the exercise of judgment er discretion.
When, therefore, as in this case, a power of sale is given to an executor, upon the happening of a contingency which can only be ascertained by the exercise of judgment and discretion, and the executor, in the honest exercise of his judgment, determines that such contingency has happened and accordingly makes the sale, such sale cannot be invalidated, even though it should be made to appear, in the light of subsequent events, that the executor had committed an error of judgment in determining whether the contingency had happened upon which he was authorized to [241]*241sell If, however, it should appear that the executor erred wilfully, or from such gross negligence as would imply wilfullness, then it would be different, and the question whether the sale should be allowed to stand, would depend largely upon whether the purchaser had notice of such misconduct upon the part of the executor. In this case, as we have seen, there is no foundation for a suspicion even that the executor acted otherwise than honestly in determining whether the contingency had happened upon which he was authorized to sell, and, therefore, upon the principles above stated there is no ground for invalidating the sale.
The judgment of the Circuit Court is affirmed.
McGowan, A. J., concurred.