The opinion of the court was delivered,
by Sharswood, J.
The terms of the 12th section of the Act of [107] February 24th 1834, Pamph. L. 75, are very comprehensive. It provides that “all powers, authorities and directions relating to real estate, contained in any last will, and not given to any person by name or description, shall be deemed to have been given to the executors thereof; but no such power, authority or direction shall be exercised or carried into .effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” It was evidently intended, as the revisers themselves say, to prescribe “ a general rule2 Parke & Johns. Dig. 753. Where a power was given in a will, but no one designated by whom it should be exercised, it was always a nice and doubtful question whether it should devolve upon the heir at law as trustee or upon the executor. It certainly was not universally true that it was vested in the executor, even when the heir at law was a minor. It is only when the distribution or management of the fund produced by a sale is expressly confided to the executor that the power is implied to be in him: Patton v. Randall, 1 Jac. & Walk. 196; Boshart v. Evans, 5 Whart. 561; Sugden on Powers, 1st Am. ed. 167; 6th Eng. ed. 133. Where a testator devised an estate to his wife for life, and directed that after her decease it should be sold to the highest bidder by public auction, and the money arising from such sale be disposed of among certain persons named in his will, and he appointed his wife and another person executors, it was held that the power was not given by implication to the executors, because they had nothing to do with the produce of the sale nor any power of distribution with respectlo it: Sugden on Powers, 1st Am. ed. 172; 6th Eng. ed. 138; Bentham v. Wiltshire, 4 Madd. 44. It may perhaps be fairly inferred that the power of sale contained in the will of Jacob Myers is impliedly vested in his executors. For although there is no express direction to them to distribute the proceeds, yet the testator has provided that all the money arising from his personal and real property shall he equally divided amongst his children. The produce of the sale of the realty is thus to be confounded with the personalty which must necessarily be divided by the executors. Wherever this is the case the power to sell will vest in them by implication : Tylden v. Hyde, 2 Sim. & Stu. 238. It was “to remove all doubts,” as Rogers, J., says (5 Whart. 561), that the legislature passed the Act of 1834. All powers in last wills, not given to any person by name or description, are to be exercised by the executors under the control and direction of the Orphans’ Court. “ Powers explicitly given,” say the revisers, “ must be strictly pursued, and the execution of them is subjected by the courts to the most rigorous construction; but in such cases there can be no doubt of the person intended as there may be in the cases here provided:” 2 Parke & Johns. Dig. [108]*108753. It was remarked in the opinion of this court in Houck v. Houck, 5 Barr 273, that “as the power of the court over the subject is a wholesome one, it ought not to be restrained by circumstances of mere implication, especially when the statute requires a designation by name or description.”
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The opinion of the court was delivered,
by Sharswood, J.
The terms of the 12th section of the Act of [107] February 24th 1834, Pamph. L. 75, are very comprehensive. It provides that “all powers, authorities and directions relating to real estate, contained in any last will, and not given to any person by name or description, shall be deemed to have been given to the executors thereof; but no such power, authority or direction shall be exercised or carried into .effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” It was evidently intended, as the revisers themselves say, to prescribe “ a general rule2 Parke & Johns. Dig. 753. Where a power was given in a will, but no one designated by whom it should be exercised, it was always a nice and doubtful question whether it should devolve upon the heir at law as trustee or upon the executor. It certainly was not universally true that it was vested in the executor, even when the heir at law was a minor. It is only when the distribution or management of the fund produced by a sale is expressly confided to the executor that the power is implied to be in him: Patton v. Randall, 1 Jac. & Walk. 196; Boshart v. Evans, 5 Whart. 561; Sugden on Powers, 1st Am. ed. 167; 6th Eng. ed. 133. Where a testator devised an estate to his wife for life, and directed that after her decease it should be sold to the highest bidder by public auction, and the money arising from such sale be disposed of among certain persons named in his will, and he appointed his wife and another person executors, it was held that the power was not given by implication to the executors, because they had nothing to do with the produce of the sale nor any power of distribution with respectlo it: Sugden on Powers, 1st Am. ed. 172; 6th Eng. ed. 138; Bentham v. Wiltshire, 4 Madd. 44. It may perhaps be fairly inferred that the power of sale contained in the will of Jacob Myers is impliedly vested in his executors. For although there is no express direction to them to distribute the proceeds, yet the testator has provided that all the money arising from his personal and real property shall he equally divided amongst his children. The produce of the sale of the realty is thus to be confounded with the personalty which must necessarily be divided by the executors. Wherever this is the case the power to sell will vest in them by implication : Tylden v. Hyde, 2 Sim. & Stu. 238. It was “to remove all doubts,” as Rogers, J., says (5 Whart. 561), that the legislature passed the Act of 1834. All powers in last wills, not given to any person by name or description, are to be exercised by the executors under the control and direction of the Orphans’ Court. “ Powers explicitly given,” say the revisers, “ must be strictly pursued, and the execution of them is subjected by the courts to the most rigorous construction; but in such cases there can be no doubt of the person intended as there may be in the cases here provided:” 2 Parke & Johns. Dig. [108]*108753. It was remarked in the opinion of this court in Houck v. Houck, 5 Barr 273, that “as the power of the court over the subject is a wholesome one, it ought not to be restrained by circumstances of mere implication, especially when the statute requires a designation by name or description.”
Was there then in the will of Jacob Myers such a designation by name or description ? We have considered maturely the argument addressed to us by the able counsel of the appellants, but it has failed to convince us. His construction is mainly based on the words “ this I leave to the discretion of my hereinafter named executors.” It is earnestly maintained that they apply to the whole of the paragraph to which they are appended. The argument proves too much. If the qualification applies to the whole clause, w'hich precedes it, then it must follow that it was left to the discretion of the executors whether there should be any appraisement at all as well as who should be the appraisers. It is impossible to divide and distinguish the two things. But the direction that there shall be an appraisement is absolute and unqualified, and the subsequent provision for a sale depends upon it. If these words however are confined to the' next immediate antecedent, which in grammatical strictness they ought to be, then, whether the small property on which the testator resided, and the mansion-house farm should be appraised separately or together, according as more money could be made out of them, presented a question upon which the discretion of the executors might act. The testator said in effect — I leave this to be decided by my executors, not by the appraisers. Nor do we think that the concluding words of the will can be construed to refer to the appointment of appraisers. He named his two sons to be his executors “ to all intents and purposes, and to be vested with all the powers appertaining to the office of executors to carry into force and effect” his last will and testament. Clearly the appointment of appraisers was not a power appertaining to the office of executors, and we would not be justified in holding that this is a designation by description within the meaning of the statute. The control and direction given to the Orphans’ Court is a salutary check in this class of cases, and it would not be right to strain any general expressions to take a ease out of its purview, however far a court might go to raise .an implication if no such law existed. It is certainly true that the two executors had not both an interest in having the property appraised at a low price. It was the interest of the second son that the valuation should be a fair one; that he might receive his just share of the estate if it was taken by his brother, with an election to accept it himself if he declined. Yet there was danger in it, for nothing was easier than to arrange that between the brothers, and then to steal a march upon the [109] other heirs. There was no evidence however that there was any such fraudulent conspiracy, and it would be wrong to ground any decree upon a mere suspicion. All that appears is undue haste, which however might.be open to explanation. The will was proved, and letters testamentary issued September 2d 1865. On the same day the executors appointed the appraisers, and within one week, September 9th 1865, the appraisement was made and reduced to writing. September 15th 1865, John Myers executed a writing under his hand and seal, electing to take the property at the valuation. This was all done in due form and no doubt with the advice of counsel. Probably by the same advice a report was made of the proceedings to the Orphans’ Court on the 26th September following. This could only have been upon the idea that the case was within the provision of the Act- of 1884. It is now said that the executors did not ask for a confirmation, and that their only purpose was to put the appraisement and election on record. If, as now contended, the court had no jurisdiction, it certainly was a most inappropriate place to record them. They .might as well have been filed anywhere else. The office of the recorder of deeds was the proper place if the simple object was what is now suggested. But in truth it was a submission to the jurisdiction of the court. Accordingly on exceptions filed, the question was heard and decided. No motion or application appears to have been made for leave to withdraw the report from file. After the decree setting aside the appraisement, an appeal to this court was entered which it appears was never prosecuted. In our view of the law, the Orphans’ Court had control and direction of the execution of this power; the case was within their jurisdiction, and it follows that the decree was final and conclusive upon the parties. The first and second errors assigned are therefore dismissed.
We are of opinion however that the court below erred in disallowing the credits for fees paid by the accountants for legal services and advice, and in striking out all compensation. There was po evidence that we can see of actual fraud. The executors may have acted honestly with the advice of counsel, and every presumption is in their favor. The questions which arose upon the construction of the will and the jurisdiction of the court were certainly hot so clear that they ought to be held unfaithful to their trust in merely acting upon what they thought and may have been advised was the will of the testator. It would be a hard measure of justice to visit a trustee with such consequences for a mistake of judgment upon points in regard to which lawyers and judges might well differ in opinion. Allowing then the credits for fees to counsel, and reducing the allowance to the executors to $50, which seems a sufficient sum for the settlement of so small a personal estate— the account will stand $719.91 on the debit and $550.68 on the [110] credit side, showing a balance in tbe bands of tbe executors of $169.23. Tbe decree of tbe court below is modified accordingly.
And now it is ordered that so much of tbe decree below as directs that tbe item of $7917.81J on tbe debit side and tbe item of $2639.27 together with tbe items of $6 and $4.50 on tbe credit side of tbe account be stricken out is affirmed, and that so much as directs tbe two items of $10 and $50 on tbe credit side to be stricken out is reversed, and that tbe item of $250 on tbe credit side for allowance to accountants be reduced to $50. That tbe costs of this appeal be paid by tbe executors from tbe estate in their bands, and tbe record be remitted to tbe court below for further proceedings.
Agnew, J., dissented and filed a dissenting opinion.