Hoar, J.*
Among the numerous questions arising in this cause, which have been presented and discussed with learning and ability by the counsel on both sides, there is one which, in the opinion of all the members of the court who heard the argument, is decisive of it, and renders the consideration of the rest superfluous.
The bill is framed upon the averment that the deed from the trustees to Sanderson conveyed the legal estate in the land in controversy, and seeks to charge it in the hands of the heirs of the purchaser with the trusts for which it was held originally under the will. It is asserted on the one side, and conceded on the other, that the trustees took a fee by implication under the will, and that their deed would therefore pass the fee to their grantee. That either the deed to Sanderson of April 21, 1832, or of May 3, 1847, was sufficient in form to convey all the legal estate which the trustees held and could rightfully dispose of, can hardly be questioned. The latter deed is expressly declared to be made in pursuance of the power and authority [202] given to the trustees by the will, and of any and all powers which could enable them to execute it.
We are then brought directly to the consideration of the question whether the contract of sale which was made in 1832 was a breach of trust, for which either the trustees themselves, or a purchaser with notice, can be held responsible in equity ? And we are of opinion that it was not.
We assume, in coming to this conclusion, that the deeds made by the guardians were without authority of law, and were wholly inoperative. They are therefore to be entirely disregarded, except so far as they may properly furnish evidence of the purposes and motives of the trustees.
The discretion given to the trustees by the terms of the will was a large one. They are appointed, in the first place, by the testator, “ to be trustees under this will, to receive, take and hold all or any part of my property and estate, for the accomplishment of any, all or either of the purposes for which the intervention of a trustee is either necessary or expedient.” They are exempted from giving bonds until, on complaint of their malfeasance or negligence, the judge of probate should order bonds to be given. Their power to sell the real estate is given in these terms: “ I give to the trustees and trustee acting for the time being, for the performance of this my will, full power and authority to make sale of the whole or any part of my real estate, if such sale becomes necessary or expedient for the purpose of raising any of the sums of money hereinbefore mentioned and bequeathed, and to execute and deliver to the purchaser or purchasers thereof any and all such deeds or conveyances as may be requisite to pass a good and valid title in the parts so sold.”
In construing this last extract from the will, we are to determine what was meant by “ necessary ” and what by “ expedient.” It might be said that a sale of real estate could not be necessary to raise the sums of money bequeathed by the will, if they could be raised from any other source; and as the per sonal estate appears to have exceeded the amount required, the necessity contemplated did not exist. But the trustees are also [203] allowed to sell whenever a sale becomes “ expedient; ” and this gives them a much wider latitude. There is no other test of expediency prescribed by the testator than the sound discretion and judgment of the trustees. Undoubtedly they were bound to exercise such a discretion; and cases might be supposed in which a court of equity would intervene to control a manifest-abuse of it. But if the sale was made for the purpose of raising any of the sums of money bequeathed in the will, if it was honestly and fairly made, and in the opinion of the trustees was an act which would benefit the parties interested in the execution of the trust, they were justified in making it. It had then become “ expedient,” within the meaning of the will. To give the phrase any force, it is clear that it must be held applicable to cases where the money was not actually and absolutely needed for the payment of the legacies.
And if the sale was in this manner found to be expedient, it certainly would not impair or diminish the right to make it, that it was desirable for other reasons besides those for which it was expressly authorized. It is only to appear affirmatively that the sale was regarded by the trustees as expedient for the purpose of raising the sums of money bequeathed in the will, and that their opinion was not so manifestly erroneous as to show negli gence or bad faith.
The argument for the plaintiff on this point, however, is based upon two propositions : first, that there was never a sale which was designed, to be made under the power given by the will; and secondly, that the discretion, if any was confided to the trustees as to the expediency of making a sale for the purpose of paying the legacies, was never exercised by them.
It is admitted that the sale at public auction was for a fair price, and the highest that could be obtained for the land ; that Sanderson was a purchaser in good faith and for the full value it, the time ; and that it was the intention of the trustees and all parties in interest then and there to sell to him the whole of the arm. It further appears from the evidence, which is not contra'.jcLCC1, ffiat the trustees were of opinion and decided that a sale V ih • farm was expedient, under and for the purposes of the [204] will, and for raising some of the sums of money mentioned or bequeathed therein ; and also that such sale would be for the manifest benefit of all parties in interest. This also appears to have been the original design and purpose of the trustees in making the sale. When this had been resolved upon, and the advice of counsel was taken as to the mode in which it should be carried into effect, the plan was adopted of a conveyance of the interests of the cestuis que trust, directly by those who were of adult age, and by the guardians of the minors under a license from the probate court. This form of conveyance, the plaintiffs now contend, should be regarded as the essence of the transaction. But we do not think it can be so considered. The purchase money was all paid to the trustees, to be held for the uses of the will; and the proof is satisfactory that it was understood and agreed from the outset that it should be so applied. The trustees conveyed their title, and the rest was all matter of form, supposed to be necessary to effectuate the intention. That the deeds given by the guardians were wholly nugatory and ineffectual cannot make the title which passed directly from the trustees any the less valid.
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Hoar, J.*
Among the numerous questions arising in this cause, which have been presented and discussed with learning and ability by the counsel on both sides, there is one which, in the opinion of all the members of the court who heard the argument, is decisive of it, and renders the consideration of the rest superfluous.
The bill is framed upon the averment that the deed from the trustees to Sanderson conveyed the legal estate in the land in controversy, and seeks to charge it in the hands of the heirs of the purchaser with the trusts for which it was held originally under the will. It is asserted on the one side, and conceded on the other, that the trustees took a fee by implication under the will, and that their deed would therefore pass the fee to their grantee. That either the deed to Sanderson of April 21, 1832, or of May 3, 1847, was sufficient in form to convey all the legal estate which the trustees held and could rightfully dispose of, can hardly be questioned. The latter deed is expressly declared to be made in pursuance of the power and authority [202] given to the trustees by the will, and of any and all powers which could enable them to execute it.
We are then brought directly to the consideration of the question whether the contract of sale which was made in 1832 was a breach of trust, for which either the trustees themselves, or a purchaser with notice, can be held responsible in equity ? And we are of opinion that it was not.
We assume, in coming to this conclusion, that the deeds made by the guardians were without authority of law, and were wholly inoperative. They are therefore to be entirely disregarded, except so far as they may properly furnish evidence of the purposes and motives of the trustees.
The discretion given to the trustees by the terms of the will was a large one. They are appointed, in the first place, by the testator, “ to be trustees under this will, to receive, take and hold all or any part of my property and estate, for the accomplishment of any, all or either of the purposes for which the intervention of a trustee is either necessary or expedient.” They are exempted from giving bonds until, on complaint of their malfeasance or negligence, the judge of probate should order bonds to be given. Their power to sell the real estate is given in these terms: “ I give to the trustees and trustee acting for the time being, for the performance of this my will, full power and authority to make sale of the whole or any part of my real estate, if such sale becomes necessary or expedient for the purpose of raising any of the sums of money hereinbefore mentioned and bequeathed, and to execute and deliver to the purchaser or purchasers thereof any and all such deeds or conveyances as may be requisite to pass a good and valid title in the parts so sold.”
In construing this last extract from the will, we are to determine what was meant by “ necessary ” and what by “ expedient.” It might be said that a sale of real estate could not be necessary to raise the sums of money bequeathed by the will, if they could be raised from any other source; and as the per sonal estate appears to have exceeded the amount required, the necessity contemplated did not exist. But the trustees are also [203] allowed to sell whenever a sale becomes “ expedient; ” and this gives them a much wider latitude. There is no other test of expediency prescribed by the testator than the sound discretion and judgment of the trustees. Undoubtedly they were bound to exercise such a discretion; and cases might be supposed in which a court of equity would intervene to control a manifest-abuse of it. But if the sale was made for the purpose of raising any of the sums of money bequeathed in the will, if it was honestly and fairly made, and in the opinion of the trustees was an act which would benefit the parties interested in the execution of the trust, they were justified in making it. It had then become “ expedient,” within the meaning of the will. To give the phrase any force, it is clear that it must be held applicable to cases where the money was not actually and absolutely needed for the payment of the legacies.
And if the sale was in this manner found to be expedient, it certainly would not impair or diminish the right to make it, that it was desirable for other reasons besides those for which it was expressly authorized. It is only to appear affirmatively that the sale was regarded by the trustees as expedient for the purpose of raising the sums of money bequeathed in the will, and that their opinion was not so manifestly erroneous as to show negli gence or bad faith.
The argument for the plaintiff on this point, however, is based upon two propositions : first, that there was never a sale which was designed, to be made under the power given by the will; and secondly, that the discretion, if any was confided to the trustees as to the expediency of making a sale for the purpose of paying the legacies, was never exercised by them.
It is admitted that the sale at public auction was for a fair price, and the highest that could be obtained for the land ; that Sanderson was a purchaser in good faith and for the full value it, the time ; and that it was the intention of the trustees and all parties in interest then and there to sell to him the whole of the arm. It further appears from the evidence, which is not contra'.jcLCC1, ffiat the trustees were of opinion and decided that a sale V ih • farm was expedient, under and for the purposes of the [204] will, and for raising some of the sums of money mentioned or bequeathed therein ; and also that such sale would be for the manifest benefit of all parties in interest. This also appears to have been the original design and purpose of the trustees in making the sale. When this had been resolved upon, and the advice of counsel was taken as to the mode in which it should be carried into effect, the plan was adopted of a conveyance of the interests of the cestuis que trust, directly by those who were of adult age, and by the guardians of the minors under a license from the probate court. This form of conveyance, the plaintiffs now contend, should be regarded as the essence of the transaction. But we do not think it can be so considered. The purchase money was all paid to the trustees, to be held for the uses of the will; and the proof is satisfactory that it was understood and agreed from the outset that it should be so applied. The trustees conveyed their title, and the rest was all matter of form, supposed to be necessary to effectuate the intention. That the deeds given by the guardians were wholly nugatory and ineffectual cannot make the title which passed directly from the trustees any the less valid.
Another and important consideration is this : At the time the farm was sold, the trustees had received no personal estate from the executors; and they did not receive any for a year afterward, and then but $2000 at first. There were some of the legacies becoming due, and it appears that part of the price for which the farm was sold was used toward paying them. It is therefore clear that there was no impossibility that the amount received from the sale could be used to discharge the legacies. There was nothing in the language, nor, that we can perceive, in the intent and purpose of the provision in the will, which conferred the power of sale, which restricts its exercise to the very time when the legacies were immediately payable. In providing the means of payment, the trustees might rightfully consider a future as well as a present obligation. As they were to pay the legacies at some time, and meanwhile were to pay the annuities, it might seem to them expedient to dispose of unproductive and expensive real estate for that purpose; and [205] not to prevent the investment of personal estate in a productive and profitable manner, or be obliged to use that which was already invested judiciously, when the time for payment should arrive.
There might even be ground for maintaining the proposition that, under so broad a power as the will created to sell any of the real estate if such sale should become expedient for the purpose of raising any of the sums of money mentioned and bequeathed therein, it would have been competent for the trustees to sell it for the purpose of more conveniently raising the annuities which were to be paid to the widow and others. These annuities are sums “ mentioned and bequeathed ” in the will; and although the annual payment to the wife is expressly ordered to be made from the rents, profits and income of the real and personal estate, yet we do not see that it might not become “ expedient,” within the fair meaning of that term, to sell real estate and invest the proceeds, with a view of paying the annuity from the income thus secured, and so leaving other parts of the estate to be devoted with more convenience and advantage to the other uses of the will. But we have no occasion to put the decision upon this ground.
That the trustees did decide that it was expedient to sell the land for the purpose, among others, of having money at their command from which to pay the legacies as they should become payable, we think is fully shown by the evidence. Mr. Heath testifies that “ the naked question by itself, whether the personal property in the estate would be sufficient or insufficient to pay the various legacies and the mortgage due Sohier & Dexter, was not considered, nor was it deemed material.” But he adds : “ The question which, however, we did very carefully consider, included that question, and was this: what was the best mode to manage the property, both to obtain the sums necessary to pay all debts and legacies, and to derive the best income therefrom for all the purposes of the will; and this was the question we decided.” “ The chief reason which led us to decide that it was expedient to sell the farm was, that after the payment of the debts and legacies of the testator from the [206] personal estate, if sufficient for that purpose, we thought that it was expedient and proper to sell this real estate in order to put its value in a form to raise the sums necessary to pay the annuities and incomes provided by the will. Our chief reason was that we might get for' these purposes under the will as large an income as possible from it.” If it follows from this statement that the chief reason which influenced the trustees was to change the investment, in order to increase the income, as the plaintiffs allege, yet if they had in mind also the duty of paying the legacies, and considered it expedient also as a means of more conveniently providing for their payment, which it appears was the case, it was within the scope of their discretion. It might be deemed expedient to sell the land for the purpose of paying the legacies, if the sale and investment of the proceeds enabled them to provide for the annuities, and thus to appro priate other funds to the payment of the legacies, which, but for the sale of the land, would have been needed to pay the annuities, - Which was the chief reason for the course taken is unimportant, if it appeared to them expedient to take it for the purpose which the will authorized.
The other objections to the maintenance of the suit which the defendants have presented, though worthy of serious consideration, need not be decided. They are founded upon facts which would at least furnish reason for adopting the most liberal construction of the powers given to the trustees, and for taking an indulgent view of their acts. But what seems to us a fair and just construction of the power vested in the trustees by the will, irrespective of any other considerations, has led to the conclusion that this power was lawfully and duly executed, and that the judgment must be Bill dismissed, with costs.