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uance of the bond, the power should be shown by a certified copy of the will or of the decree of the court. If the terms of the will or decree authorize one executor or trustee to act in the case stated, this authority should be shown in the same mode. If it be assumed that there is authority lodged by the terms of the will or by judicial decree in both executors, either as such or as trustees, which is broad enough in terms to justify a contract by them with the Govern. ment for the continuance of the bond upon the conditions proposed by the Secretary of the Treasury, then the question arises whether this authority remains uniinpaired in the one sane executor, so as to enable him to contract with the United States for such continuance of the bond. When there are two executors, the acts of one from which the other does not dissent, in respect of the administration of the effects of an estate, as distinct from making general contracts, will, at common law, ordinarily bind both. (2 Wms. Ex’rs, 1946, et seq.; Edmonds vs. Crenshaw, 14 Pet., 166; 3 Bac. Abr., 30, tit. "Executors," C. 1, D. 1; Shep. Touchst., 481; Wentw. Off. Ex., 14th ed., 206, 213; Ex parte Rigby, 19 Ves., 462; Lank vs. Kinder, 4 Harring., 457; Jackson vs. Shaffer, 11 Johns., 513; Kerr vs. Waters, 19 Ga., 136; Wilkerson vs. Wootten, 28 Ga., 568; Wheeler v8. Wheeler, 9 Cowen, 31; Stewart rs. Conner, 9 Ala., 803; Owen vs. Owen, 1 Atk., 495; People vs. Keyser, 28 N. Y. 226; 1 Roll. Abr., 618, 924, Devise, B., Ex. Off.; Com. Dig. Admistration, B. 12; Paff vs. Kinney, 1 Bradf. Sur. 1; Shaw vs. Berry, 35 Maine, 279; Gilman vs. Healy, 55 Id., 120; Bodley vs. McKinney, 9 Sm. & M., 339; Gage vs. Johnson, 1 McCord, 192; Bryan vs. Thompson, 7 J. J. Marsh., 587; Shreve rs. Joyce, 7 Vroom, 48; Bogert vs. Hertell, 4 Ilill, 492; 9 Paige, 52; Stuyvesant vs. Hall, 2 Barb. Ch., 151; Murray vs. Blatchford, 1 Wend., 583; Jackson vs. Robinson, 4 Id., 436; Douglass vs. Satterlee, 11 Johns., 16; Hall vs. Carter, 8 Ga., 388; Chew's Estate, 2 Parsons, Sel. Cas., 153; Wood vs. Brown, 31 N. Y., 337; Jacomb vs. Hardwood, 2 Ves., sr., 267; Devling vs. Little, 26 Pa. St., 502; Hoke vs. Fleming, 10 Ired. L., 26; Weir vs. Mosher, 19 Wis., 311; Son vs. Miner, 37 Barb., 466; Smith vs. Everett, 27 Beav., 146; Simpson vs. Gutteridge, 1 Madd., 616; Murrell vs. Cox, 2 Vern., 570; Dwight vs. Newell, 15 III., 333; Lepard 08. Vernon, 2 Ves. & B., 54; Cole vs. Miles, 10 Hare, 179.) One executor is not the agent of the others so as to bind them by his several contracts. (Turner vs. Hardey, 9 M. & W., 770; 11 Id., 773; Pearce vs. Smith, 2 Brev., 360; 2 Wms., Ex’rs, (950.]) One joint trustee or executor may receive the income or rent of property himself, or he may appoint a bailiff to collect it. (Newman vs. Keffer, 9 Casey, 442, n.; Connolly vs. Belt, 5 Cr. C. C., 405.)

It has been held that several administrators must all join in executing the acts of their office. (1 Wms., Ex'rs, [428;] 2 Id., (950,] [951;] 4 Bacon's Elements, 83; In the Goods of Naylor, 2 Robert., 409; Comyns, Dig., tit., “ Administrators;” Shep. Touchst., 484; 1 Atk., 460; War. wick vs. Greville, 1 Phillim., 126; Stanley vs. Bernes, 1 Hagg., 222.) In other cases administrators are placed on the same footing with executors. (2 Wms., Ex’rs, (950;] Willard vs. Fenn, Selw. N. P., 6th ed., 767 n. 8; Jacomb vs. Harwood, 2 Ves., sr., 267; Herald vs. Harper, 8 Blackf., 170; Dean vs. Duffield, 8 Texas, 235; Bryan vs. Thompson, 7 J. J. Marsh., 587; Beattie vs. Abercrombie, 18 Ala., 9; Rick vs. Gilson, 1 Pa. St., 58; Shep. Touchst., 485, 486; Smith vs. Everett, 27 Beav. 454.)

But if persons who are executors are, though acting under a will, really trustees executing a trust, and as such separate and stin from their character as administrative trustees, all must, while living and in office, “perform their duties in their joint capacity.” (1 Perry, Trusts, 2d ed., sec. 411 ; 2 Id., sec. 499; Smith us. Wildman, 37 Conn., 384; White vs. Watkins, 23 Mo., 423; Ex parte Griffin, 5 Gl. & J., 116; Shook vs. Shook, 19 Barb., 653; DePeyster vs. Ferrers, 11 Paige, 13; Franklin vs. Osgood, 14 Johns., 560; Cox vs. Walker, 26 Me., 504; Hill vs. Josseyln, 13 Sm. & M., 597; Crewe vs. Dicken, 4 Ves., 97; Fellows vs. Mitchell, 1 P. Wms., 83; s. C., 2 Vern., 516; Churchill vs. Lady Hobson, Id., 241; Chambers vs. Minchin, 7 Ves., 198; Leigh vs. Barry, 3 Atk., 584; Belcher vs. Parsons, Amb., 219; Ex parte Rigby, 19 Ves., 463; Webb vs. Ledsam, 1 K. & J., 385; Latrobe vs. Tiernan, 2 Md. Ch., 480; Vandever's App., 8 W. & S., 405; Sinclair vs. Jackson, 8 Cow., 544; Ridgeley vs. Johnson, 11 Barb., 527; Austin vs. Shaw, 10 Allen, 552; King vs. Stone, 6 Johns. Ch., 323; Powell vs. Tuttle, 3 Comst., 396; Sherwood vs. Read, 7 Hill, 431; Hill on Trustees, Am. ed., 1846, p. 305; 2 Fonbl. Eq. B. 2, ch. 7, sec. 5; 1 Cruis. Dig., tit. 12, ch. 4, sec. 39.)

It follows from this requirement of joint action that if one of the trustees become insane, his place must be supplied by the proper court or in some other authorized manner, in order to the execution of the trust. (1 Perry, Trusts. 2d ed., sec. 411; Smith vs. Wildman, 37 Conn., 384; Dowley vs. Sherratt, 2 Eq. Ca. Ab., 742; Re Cong. Church vs. Smithwick, 1 W. N., 196; Scruggs vs. Driver, 31 Ala., 274; Matter of Wadsworth, 2 Barb. Ch., 381; Matter of Mechanics' Bank, Id., 446; Burrill vs. Sheil, 2 Barb., 457; Wood vs. Wood, 5 Paige, 596; Davis vs. McNeil, 1 Ired. Eq., 344; Matter of Van Wyke, 1 Barb. Ch., 565; Guy. ton vs. Shane, 7 Dana, 498; Ridgeley vs. Johnson, 11 Barb., 527; Ex parte Belchier, Amb., 219.)

The assistant treasurer's statement does not present a simple case of disclaimer or of survivorship among executors.

The insane executor or testamentary trustee cannot be divested of the legal title to the assets or trust-property by any act of the coexecutor. Where, as in this case, all the executors were, but are not now, sui juris, recourse must be had to the proper court of equity for the removal of the incompetent executor, the grant of fresh probate, or such other action as the law of the State may provide for. The mere existence of lunacy never operates to revoke a power. (Wallis rs. Manhattan Co., 2 Hall's Sup. Ct., 500.) It has been held that, if a co-executor become non compos, the

proper court may, on account of the disability, remove him from office and either confer the executorial power upon the competent executors or testamentary trustees, or else appoint another in his stead. (Hills vs. Mills, 1 Salk., 36; Evans vs. Tyler, 2 Robert., 128, 134; In the Goods of Hardstone, 1 Hagg., 487; Offley vs. Best, 1 Sid., 373; Stearns vs. Fisk, 18 Pick., 24, 28; In the Goods of Newton, Curteis, 428; In the Goods of Marshal, Id., 297; Thayer vs. Homer, 11 Met., 110; Hussey cs. Coffin, 1 Allen, 354; Winship vs. Bass, 12 Mass., 199; Drake vs. Green, 10 Allen, 124; Switzer vs. Skiles, 3 Gilm., 529; Diefendorf vs. Spraker, 6 Seld., 246; Shepherd vs. McEvers, 4 Johns. Ch., 136; Matter of Jones, 4 Sandf., 615; Cruger vs. Halliday, 11 Paige, 314; Courtenay 08. Courtenay, 3 Jo. & La., 529; Wms., Ex'rs, (238,] [517] [518] [519] (579;] Perry, Trusts, secs. 401, 921; Bac. Abr., 50 tit. Ex’rs, E; Comyns' Dig. Admr., B. 8.)

The statutes of the several States generally lay down a rule of practice in the case of insane executors, administrators, guardians, and trustees. When one of two or more executors who have proven the will has become non compos, the English practice under Stats. 11 Geo. IV; 1 W. IV, c. 60; and 13 and 14 Vict., c. 60, seems to be to revoke the probate, and grant probate afresh to the other executor or executors, therein reserving a power of making a light grant to the insane executor if he shall become of sound mind and apply for the same.. (Goods of Marshal, 1 Curteis, 297.) A like practice obtains in case of administration. (In the Goods of Phillips, 2 Add., 336.) In Massachusetts the probate court may remove an executor or administrator who has become insane, or otherwise incapable of discharging the trust. (Genl. Stats., c. 101, s. 2; Thayer vs. Homer, 11 Met., 110; Hussey vs. Coffin, 1 Allen, 354; Drake vs. Green, 10 Id., 124; Winship vs. Bass, 12 Mass., 199.)

In Penusylvania the practice seems to be that when an executor, administrator, or guardian shall have been duly declared a lunatic or an habitual drunkard, the orphans' court, having jurisdiction over the accounts of such executor, administrator, or guardian, may.vacate the letters testamentary or of administration granted to such executor or administrator, remove such guardian, and award new letters, to be granted in such form as the case may require; and the court may make such order for the security of the trust property, and for its delivery to the successors of such executor, administrator, or guardian, as the circumstances of the case may require. (Act March 29, 1832, sec. 26.) By special provision for the county of Philadelphia, (act of March 3, 1847,) it seems that executors in that county or city may renounce trusts created by will, and to be executed by them, without in any way affecting or destroying their office and trust as executors generally.

The matter submitted does not make a case involving the authority of a survivor or survivors of trustees in executing a power or a trust. When there are several trustees authorized to execute a power, whether created by will or otherwise, with no specific provision as to survivorship, and one or more of them die, a different question arises. The rule in such case seems to be with, however, some conflict among the authorities—that if a naked power be given to the “trustees,” even nominatim, yet in their official character as “the trustees,” the survivors or survivor of them may execute it, because it is annexed to the office, or to the trustees ratione officii. (1 Wms., Ex’rs, [655;] 2 Id., [954,] [955;] 2 Perry, Trusts, 2d ed., secs. 499, 502, 505; Hill, Trustees, Am. ed., 303, 304;1 Sugd., Powers, 6th ed., 142; 1 Coke upon Littleton, Butler & Hargrave's Notes, 113 a, note 2; Peter vs. Beverly, 10 Pet., 532.)

Where, however, a mere discretionary power, or one 'simply collateral, has been given to several persons expressly by name, and to them only, all the individuals named must join in exercising it; and, in case of disclaimer by one or more of such persons, any act of those only who have accepted the trust will not be a valid execution of the power. (Hill, Trust., 307; 1 Sugd., Powers, 138; Worthington vs. Evans, 1 S. & St., 165; Clarke vs. Parker, 19 Ves., 19.) Nor will the bona fide refusal of a trustee to exercise a pure discretionary power for the benefit of the trust estate—for example, a power of varying securities—be a sufficient reason for a suit to have him discharged from the trust. (Lee vs. Young, 2 N. C. C., 532; Hill, Trust., 192.)

In cases where the power is thus strictly personal and not annexed to the office, nor containing words of survivorship, if one of two or more trustees die or refuse to act, the others cannot execute the power. (1 Perry, Trusts, sec. 414; 2 Id., sec. 499; 1 Sugd., Powers, 141; Boston F. Co. vs. Condit, 4 Green, Ch., 395; Co. Lit., 113 a, n. 2; Eyre vs. Shaftsbury, 2 P.. Wms., 121; Atty-Gen'l vs. Gleg, 1 Atk., 356; Amb., 584; Mansell vs. Vaughn, Wilm., 49; Butler vs. Bray, Dyer, 189b; Peyton Bury, 2 P. Wms., 628.) The power will not survive in such cases; but it will survive when given to several trustees as a class ; in which case even one survivor may execute it. (Brassey vs. Chalmers, 16 Beav., 231; S. C., 4 De G. M. & G., 528; 2 Wms., Ex’rs., [955;] 2 Perry, Trusts, secs. 499, 502; Co. Lit., 113; In matter of Bull, 45 Barb., 334; 1 Sugd. Pow., 6th ed., 142.)

A trustee who has disclaimed or renounced the power, or one duly discharged from a trust under an instrument or by decree of court, need not join in the acts of the other trustees; and it is immaterial that those acts are directed to be performed by the several individuals nominatim; for a gift to several individuals nominatim upon trusts is a gift to those only who accept the trust; and they, consequently, take full power to perform all ministerial acts incident to the office. (Hill, Trustees, 307; Flanders vs. Clark, 1 Ves., 9; Smith vs. Wheeler, 1 Ventr., 128; Hawkins vs. Kemp, 3 East, 410; Adams vs. Taunton, 5 Mad., 435; Worthington vs. Evans, 1 S. & St., 165; Taylor vs. Galloway, 1 Ohio, 282; Wood vs. Sparks, 1 Dev. & Bat. L., 389; Taylor vs. Adams, 2 Serg. & R., 534; Robertson vs. Gaines, 2 Humph., 367; Conover vs. Hoffman, 1 Bosw., 214.)

A trustee, however, who has once acted in or accepted the trust, and has not been properly discharged from it, must join with the other trustees; and it is immaterial that he has parted with the possession of the legal estate. (Crewe rs. Dicken, 4 Ves., 97; Small vs. Marwood, 2 B. & Cr., 307; 2 Sug. V. & P., 9th ed., 50; Hill, Trustees, 307.)

If a power or trust be coupled with an interest, the authority to execute it is generally held to survive. (1 Perry, Tr., sec. 414; 2 Id., secs. 499, 505; Lane vs. Debenham, 11 Hare, 188; Peyton vs. Bury, 2 P. Wms., 628; Mansell v8. Vaughn, Wilm., 49; Eyre vs. Shaftsbury, 2 P. Wms., 108; Butler vs. Bray, Dyer, 189 b; Byam vs. Byam, 19 Beav., 58; Attorney-General vs. Gleg, 1 Atk., 356; Co. Lit., 112b, 113 a, 181b; Flanders vs. Clarke, 1 Ves., 9; Potter vs. Chapman, Amb., 100; Jones vs. Price, 11 Sim., 557; 2 Op. Att.-Gen., 397; Peter vs. Beverly, 10 Pet., 532; 1 How., 134; Shelton rs. Homer, 5 Met., 466; Treadwell vs. Cordis, 5 Gray, 388; Gibbs vs. Marsh, 2 Met., 252; Wells rs. Lewis, 4 Met. Ky., 269; Bonefant vs. Greenfield, Cro. Eliz., 80; Franklin vs. Osgood, 2 Johns. Ch. 19; Davoue vs. Fanning, Id., 254; Lessee of Zebach vs. Smith, 3 Binn., 69; Muldrow vs. Fox, 2 Dana, 79; Hunt vs. Rousmaniere's Administrators, 2 Mason, 244; s. C., 8 Wheat.,

H. Ex. Doc. 219-15

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