Hob bard, J,
The bill seeks to enforce the performance of a contract alleged to have been made by the defendant, Fitzhenry Homer, with the complainant, as the acting executor of the will [465]*465of the late Benjamin P. Homer, for the purchase of a valuable real estate, the mansion house of the testator. The bill is demurred to, on the ground that the complainant has not made out such a case as entitles him, in a court of equity, to any relief, as to the matters contained in the bill.
The question arises on the construction of the clause in the testator’s will, by which he authorizes and empowers his executors, or such of them as should take upon themselves the probate of the will, to sell and convey all or any of his real estate, not specifically devised, by public auction or private contract, at the discretion of the executors, for the best price they can obtain, and at such times as they may think proper. Under this clause, the complainant contends that he can, as executor, make a good title to the defendant, Fitzhenry Homer, of the mansion house estate, for an agreed price — the said Fitzhenry having resigned his trust as executor — and that he is bound to receive the deed and to pay for the estate, agreeably to the terms of his contract.
The case has been argued with ability, and the attention of the court has been directed to numerous authorities believed to bear on the question raised at the hearing. It has been argued from the words “executors,” and “take upon themselves,” being in the plural number, that it was the manifest intention of the testator that all the executors named in the will should join in the execution of the power. But we are of opinion thát the term “ executors,” as here used, relates to those persons who actually become such by taking upon themselves the office, and would have been satisfied, if one only of the appointed executors had been qualified to act. That where all renounce but one, such one has the same power and authority in himself, as though he alone had been named as executor; see St. 21 Hen. 8, c. 4. Bonifaut v. Greenfield, Cro. Eliz. 80. If therefore the defendant had originally renounced the executorship, we see no reason why the sole executor might not have executed the power ; it being conferred on the executors by virtue of their office. When executors are individually named in connection with, and who are to execute, the power ; there, all who are mentioned are required to execute it, to give it validity. But where the term used is [466]*466simply that of executors, it applies to those who are such, virtute officii. Sharp v. Sharp, 2 Barn. & Ald. 405. Zebach v. Smith, 3 Binn. 73. Jackson v. Ferris, 15 Johns. 346. Pow. Dev. 297. But the present is not the case of a renouncing executor, but of one who has taken upon himself the trust, has exercised it in part, and then resigned his office. Doyle v. Blake, 2 Scho. & Lef. 230. 1 Williams on Executors, 149.
In relation to the authority itself, conferred by the will, we consider it a mere naked power, not coupled with a trust. The mansion house estate is not specifically devised, and the authority given to the executors to sell is discretionary ; such a power as the court could not compel them to execute for any purposes required by the will. It is a power not assignable, being spe cially reposed in the executors by the testator; nor could it have been executed by a majority of the executors, if there had been more than two.
It is true that one of the executors, (the defendant, Fitzhenry Homer,) prior to executing the contract, resigned his office of executor, and that his resignation was accepted by the judge of probate ; and it is argued by the complainant, that this is equivalent to his never having been qualified for the office. The legal character of this act of resigning his office, after having accepted and acted in it; whether it can avail to any purpose or not, or whether it is a mere nullity ; the present case does not call upon us to decide. For even supposing it to have been good, so that he can no longer discharge any of the functions of the office, still, as he once accepted the appointment, the authority to execute the power was conferred on him and his co-executor ; it was vested in them, and confined to them, and cannot be performed by one alone. If, then, his resignation is good, the power does not survive to his co-executor, to enable him to pass the estate by force of it. And if the resignation is invalid, and the defendant can now, at his pleasure, resume his trust, then the contract could not be enforced, as a bargain between the two co-executors. Co. Lit. 113 a. At common law, it was held that if one of the executors should die, the survivors could not execute a naked power. The act of all was [467]*467considered necessary to give effect to the grant. Co. Lit. 112 a. 181 b. Jenk. 44. Lock v. Loggin, 1 And. 145. Franklin v. Osgood, 14 Johns. 553. Pow. Dev. 294, 295. 4 Kent Com. (3d ed.) 325. Peter v. Beverly, 10 Pet. 564. But it has been held to be sufficient, if the words of the will are answered ; and therefore if one make three executors, and devise his lands to be sold by his executors, and one of them die before the time of sale, the other two may sell; because the intent of the testator is taken to be that such executors, who shall be alive when the land is to be sold, shall sell. Pow. Dev. 296. Still, the general rule undoubtedly is, that naked powers are to be construed strictly, while those which are coupled with a trust are to receive a liberal construction. Whatever, then, might be the authority of the surviving executor to execute this power, in case of the death of the co-executor, it cannot, during the life of each, be executed but by both.
It has been argued also, and authorities have been cited to show, that a trustee may be a purchaser, and that therefore the present defendant, Homer, who now maintains that relation, may be called upon to fulfil his contract.
It is true that conveyances by a trustee to his co-trustee have been sustained, under peculiar circumstances ; but the rule, as clearly established in the courts of chancery, both in England aud in New York, is, that where a trustee sells the trust estate and becomes himself the purchaser, he acquires only a voidable title, and holds the estate subject to the right of the cestui que trust to have the sale set aside, and a new sale ordered under the direction of the court; and this though the sale is at public auction, or otherwise in every respect bona, fide. In the language of Lord Alvanley, “ the trustee purchases subject to that equity, that if the cestuis que trust come in a reasonable time, they may call to have the estate resold. He must buy with that clog.” Campbell v. Walker, 5 Ves. 680, 681. See also Ex parte Bennett, 10 Ves. 385. Davoue v. Fanning, 2 Johns. Ch. 252. At law it has been beld differently. Mackintosh v. Barber, 1 Bing. 50, and 7 Moore, 315. See also the case of Harrington v. Brown, 5 Pick. 521; but there the court observe. [468]*468that the principle might be applied here to make the purchaser — an administrator—hold as a trustee for the heirs, and to compel him to sell the land and pay over the excess above what he gave for it.
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Hob bard, J,
The bill seeks to enforce the performance of a contract alleged to have been made by the defendant, Fitzhenry Homer, with the complainant, as the acting executor of the will [465]*465of the late Benjamin P. Homer, for the purchase of a valuable real estate, the mansion house of the testator. The bill is demurred to, on the ground that the complainant has not made out such a case as entitles him, in a court of equity, to any relief, as to the matters contained in the bill.
The question arises on the construction of the clause in the testator’s will, by which he authorizes and empowers his executors, or such of them as should take upon themselves the probate of the will, to sell and convey all or any of his real estate, not specifically devised, by public auction or private contract, at the discretion of the executors, for the best price they can obtain, and at such times as they may think proper. Under this clause, the complainant contends that he can, as executor, make a good title to the defendant, Fitzhenry Homer, of the mansion house estate, for an agreed price — the said Fitzhenry having resigned his trust as executor — and that he is bound to receive the deed and to pay for the estate, agreeably to the terms of his contract.
The case has been argued with ability, and the attention of the court has been directed to numerous authorities believed to bear on the question raised at the hearing. It has been argued from the words “executors,” and “take upon themselves,” being in the plural number, that it was the manifest intention of the testator that all the executors named in the will should join in the execution of the power. But we are of opinion thát the term “ executors,” as here used, relates to those persons who actually become such by taking upon themselves the office, and would have been satisfied, if one only of the appointed executors had been qualified to act. That where all renounce but one, such one has the same power and authority in himself, as though he alone had been named as executor; see St. 21 Hen. 8, c. 4. Bonifaut v. Greenfield, Cro. Eliz. 80. If therefore the defendant had originally renounced the executorship, we see no reason why the sole executor might not have executed the power ; it being conferred on the executors by virtue of their office. When executors are individually named in connection with, and who are to execute, the power ; there, all who are mentioned are required to execute it, to give it validity. But where the term used is [466]*466simply that of executors, it applies to those who are such, virtute officii. Sharp v. Sharp, 2 Barn. & Ald. 405. Zebach v. Smith, 3 Binn. 73. Jackson v. Ferris, 15 Johns. 346. Pow. Dev. 297. But the present is not the case of a renouncing executor, but of one who has taken upon himself the trust, has exercised it in part, and then resigned his office. Doyle v. Blake, 2 Scho. & Lef. 230. 1 Williams on Executors, 149.
In relation to the authority itself, conferred by the will, we consider it a mere naked power, not coupled with a trust. The mansion house estate is not specifically devised, and the authority given to the executors to sell is discretionary ; such a power as the court could not compel them to execute for any purposes required by the will. It is a power not assignable, being spe cially reposed in the executors by the testator; nor could it have been executed by a majority of the executors, if there had been more than two.
It is true that one of the executors, (the defendant, Fitzhenry Homer,) prior to executing the contract, resigned his office of executor, and that his resignation was accepted by the judge of probate ; and it is argued by the complainant, that this is equivalent to his never having been qualified for the office. The legal character of this act of resigning his office, after having accepted and acted in it; whether it can avail to any purpose or not, or whether it is a mere nullity ; the present case does not call upon us to decide. For even supposing it to have been good, so that he can no longer discharge any of the functions of the office, still, as he once accepted the appointment, the authority to execute the power was conferred on him and his co-executor ; it was vested in them, and confined to them, and cannot be performed by one alone. If, then, his resignation is good, the power does not survive to his co-executor, to enable him to pass the estate by force of it. And if the resignation is invalid, and the defendant can now, at his pleasure, resume his trust, then the contract could not be enforced, as a bargain between the two co-executors. Co. Lit. 113 a. At common law, it was held that if one of the executors should die, the survivors could not execute a naked power. The act of all was [467]*467considered necessary to give effect to the grant. Co. Lit. 112 a. 181 b. Jenk. 44. Lock v. Loggin, 1 And. 145. Franklin v. Osgood, 14 Johns. 553. Pow. Dev. 294, 295. 4 Kent Com. (3d ed.) 325. Peter v. Beverly, 10 Pet. 564. But it has been held to be sufficient, if the words of the will are answered ; and therefore if one make three executors, and devise his lands to be sold by his executors, and one of them die before the time of sale, the other two may sell; because the intent of the testator is taken to be that such executors, who shall be alive when the land is to be sold, shall sell. Pow. Dev. 296. Still, the general rule undoubtedly is, that naked powers are to be construed strictly, while those which are coupled with a trust are to receive a liberal construction. Whatever, then, might be the authority of the surviving executor to execute this power, in case of the death of the co-executor, it cannot, during the life of each, be executed but by both.
It has been argued also, and authorities have been cited to show, that a trustee may be a purchaser, and that therefore the present defendant, Homer, who now maintains that relation, may be called upon to fulfil his contract.
It is true that conveyances by a trustee to his co-trustee have been sustained, under peculiar circumstances ; but the rule, as clearly established in the courts of chancery, both in England aud in New York, is, that where a trustee sells the trust estate and becomes himself the purchaser, he acquires only a voidable title, and holds the estate subject to the right of the cestui que trust to have the sale set aside, and a new sale ordered under the direction of the court; and this though the sale is at public auction, or otherwise in every respect bona, fide. In the language of Lord Alvanley, “ the trustee purchases subject to that equity, that if the cestuis que trust come in a reasonable time, they may call to have the estate resold. He must buy with that clog.” Campbell v. Walker, 5 Ves. 680, 681. See also Ex parte Bennett, 10 Ves. 385. Davoue v. Fanning, 2 Johns. Ch. 252. At law it has been beld differently. Mackintosh v. Barber, 1 Bing. 50, and 7 Moore, 315. See also the case of Harrington v. Brown, 5 Pick. 521; but there the court observe. [468]*468that the principle might be applied here to make the purchaser — an administrator—hold as a trustee for the heirs, and to compel him to sell the land and pay over the excess above what he gave for it.
In the present case, no sale has taken place, but a mere con tract for sale has been made, bearing date two days after the resignation, by the trustee, of his office of executor, and, as we may vVell conclude, agreed upon before such resignation; and this contract we are called upon to enforce. But sitting as a court of equity, we cannot sustain, upon principles of sound policy, contracts of a character like the present. For although we have no reason to doubt that this individual transaction is fair in its motives, and beneficial perhaps to the other children of the testator; still to affirm it would sanction the principle, that an executor may bargain with his co-executor for the estate of the testator, or a part of it, and then, by the resignation of him who is to have the estate, a conveyance can be made to him by the other — and this in the exercise of a mere naked power, and, in the present case, where, as a trustee, he is still in privity with the estate. And though conveyances to trustees may be examined in a court of equity, and set aside, as it regards heirs or cestuis que trust, still the conveyance would be voidable only in the first instance, and a title might perhaps be passed to strangers purchasing without notice. To support such contracts and- conveyances would lead to frauds upon infants and others unable to protect themselves, and would open wide the door to all the mischiefs which are intended to be prevented by the denial of the right of a person to be both buyer and seller. And though cases may arise where sales to a trustee of the trust property may be supported, yet contracts like the present are not entitled to the sanction of this court. Under these views, the demurrer is sustained, and the bill must be dismissed