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vey after the expiration of two years have been, to a great extent, defeated under the following clause: "All the by himself, by rules of law, and by rest and residue of my estate, both events which occurred after his death. real and personal, I hereby direct my His son Edward, being a witness to the said executors and executrixes, and will, could take nothing under it; and give them full power and authority, all the beneficial intentions of the to sell and absolutely dispose of the testator towards this son are ineffecsame within two years after my de- tual. If the bequest of £150 to his cease.”
son Isaac M. is considered as payable
from the product of the real estate 111. Limitation for specified purpose.
when sold,-and such is the sense of a. General rule.
the will,—this contingent legacy fails, Where by a will the power to sell
Isaac M. having died before the power lands of the testator is given for a
to sell was or could be exerted. The specified purpose, which no longer
intended dispositions of the money exists, as where it has been accom
which should arise from the sale of plished or has become impossible to the real estate are, to a great extent, accomplish, it is the general rule that impossible, and in
impossible, and in these circumthere is no power to sell thereafter stances, the intentions of the testator in the absence of a clearly expressed in giving the power are frustrated. intention to the contrary.
This power to sell cannot be disjoined United States. — Young v. Bradley from the other provisions of the will; (1879) 101 U. S. 782, 25 L. ed. 1044. the purposes of the testator in giving
Massachusetts. Heard v. Read the power, as in other respects, must (1898) 171 Mass. 374, 50 N. E. 638.
be ascertained from all the provisions Michigan.-Conant v. Stone (1913) of the instrument; and the objects of 176 Mich. 654, 143 N. W. 39.
the power must be considered in conNew Jersey. Tucker v. Baldwin nection with the power itself. (1907) 73 N. J. Eq. 224, 66 Atl. 928. In this case I am of opinion that, by
New York. Prentice v. Janssen the total nullity of the will in respect (1880) 79 N. Y. 478, affirming (1878). to the portions of the estate intended 14 Hun, 548; Sweeney v. Warren for Edward, and by the failure of the (1891) 127 N. Y. 426, 24 Am. St. Rep. legacy of £250 [sic] to Isaac M., the 468, 28 N. E. 413; Trask v. Sturges
objects of the power had
so far (1902) 170 N. Y. 482, 63 N. E. 534,
failed that there was not a valid powreversing (1900) 56 App. Div. 625, 68 er to sell in 1818, when a sale was N. Y. Supp. 1149; Jackson ex dem. made by two of the executors. The Ellsworth v. Jansen (1810) 6 Johns. power fails because its objects are un73; Sharpsteen v. Tillou (1824) 3 Cow.
attainable." 651; Harvey v. Brisbin (1888) 50 Hun, And in Wilkinson v. Buist (1889) 376, 3 N. Y. Supp. 676, affirmed in 124 Pa. 253, 10 Am. St. Rep. 580, 16 (1894) 143 N. Y. 151, 38 N. E. 108. Atl. 856, it was said: “Although the
Ohio.-Ward v. Barrows (1853) 2 power may be expressed in the most Ohio St. 251.
general terms, yet, if the purpose of Pennsylvania Swift's Appeal
its creation appears, and that purpose (1878) 87 Pa. 502; Wilkinson v. Buist has ceased, there can ordinarily be no (1889) 124 Pa. 253, 10 Am. St. Rep.
further execution of the power, as it 580, 16 Atl. 856; Fidler v. Lash (1889)
will be presumed that the testator did 125 Pa. 87, 17 Atl. 240.
not intend that the power should be Tennessee. Murdock v. Johnson exercised after the accomplishment of (1870) 7 Coldw. 605.
that purpose." Thus, in Sharpsteen v. Tillou (1824) In the case of a power of sale given 3 Cow. (N. Y.) 651, it was said in this to trustees by will it has also been connection: "The objects which the said: "Powers of sale of real propertestator seems to have contemplated, ty given by will to trustees usually in directing that his real estate should end when the trust ends, but if it be sold after the decease of his widow, affirmatively appears that it was the intention of the testator that the trus
b. Application of rule. tees should have a power of sale after In Conant v. Stone (1913) 176 Mich, the trust in other respects has termi- 654, 143 N. W. 39, the will under nated, such powers may be exercised consideration, after making certain after the termination of the trust." provisions for the testator's son, conHeard v. Read (1898) 171 Mass. 374, tained the following clause: “I fur50 N. E. 638.
ther provide that any and all real esThe right to exercise the power in tate that I may die possessed of shall this class of cases, of course, depends be sold by executors on or before on the intention of the testator. Wil- seven years from the time of my death, kinson v. Buist (Pa.) and Murdock and the proceeds invested in several v. Johnson (Tenn.) supra.
securities so that the income from all So, in Wilkinson v. Buist (Pa.) su- my property may be secured to the best pra, it was said: "It is the testator's advantage for my son above named." intention with respect to the duration It appeared that the son died about of a power which governs in all cases. a month after his father, and that When the limitations contained in a there had been no sale of the property settlement by will have expired, and by the executors. It was held that as absolute interests in fee have vested the son had died before the power of in possession in persons sui juris, it sale had been exercised by them, the may well be supposed that the testa- clause conferring the power had betor intended that a power of sale will come inoperative. not after that be exercised; but if on
It appeared in Sweeney v. Warren the construction of the instrument it
(1891) 127 N. Y. 426, 24 Am. St. Rep. appears otherwise, and that the testa
468, 28 N. E. 413, that the testator by tor intended it should be afterwards
his will provided as follows: “I auexercised, the power will, of course, thorize and direct my executors to be upheld, unless it is obnoxious to sell and convey the strip of land herethe rule against perpetuities, or the tofore mentioned and described as cestuis que trustent have elected to
lying on the Niagara river, and also take the property as it stands. Re that piece of land on Sweeney street Cotton (1882) L. R. 19 Ch. Div. (Eng.) and on the Tonawanda creek, east of 624. On the other hand, as was said the building known as the Shoe Shop, by Sir Edward Fry in the case just for the purpose of discharging all my cited: 'It is well ascertained that debts." It appeared that the survivwhen there is a settlement of real ing executor had sold and conveyed estate, either by will or by deed, and to the testator's widow the land in the settlement ultimately carries the question, at which time the executor land to a person entitled in fee simple, and widow knew that after payment and there are powers couched in gen
of all debts and expenses of adminiseral words and without limitation as tration there was a surplus of more to time, which are nevertheless ob- than $1,200 arising from the personal viously intended to be exercised only estate. Several years later an action during the subsistence of the inter
of ejectment was begun by the testamediate limitations, the the moment tor's heirs at law against the widow, the estate in fee is vested, the powers to recover possession of the lots purare at an end, because it was the in- chased by her. The court, in reverstention of the settlement that they ing a judgment in favor of the deshould subsist only during the inter- fendant, said: "By this provision mediate limitations. The vesting of the lots mentioned are not converted the estate absolutely in the persons into money out and out, but the execultimately entitled is an indication, utors are empowered to convert them merely, that, according to the true for a specific purpose, to wit, the payconstruction of the settlement, the ment of the testator's debts. When a intention of the settlor was that the testator authorizes his executors to powers would, in that event, come to sell and convert into money all or a an end."
part of his realty for a specific purpose, which fails, or is accomplished daughter's life, and it was held that without a conversion, the power is ex- after her death no purpose existed for tinguished and the land cannot be sold a sale, and that the power ceased. by virtue of it, or treated as money, In Swift's Appeal (1878) 87 Pa. 502, but it descends to the heir unless it is there was an appeal from a decree disdevised.
When the executor missing a petition for a citation to sold the lots, both he and the pur- executors to show cause why an order chaser knew that the testator's per- should not issue for a sale of the sonal property exceeded by more than residuary estate. It appeared that the $1,200 the testator's debts and the ex- will provided that, "in order to enable penses of administration, which de- my executors, hereinafter named, to feated the power to sell under this carry out the requirements of my clause, unless, as it is argued, the hereinbefore recited will, I do hereby testator intended that these lots authorize and empower them, or the should be sold and the avails applied survivors or survivor of them, as soon towards the payment of his debts, for after my decease as it can be done to the purpose of relieving to that extent advantage, to sell at public or private the personal estate from the burden sale, as they may deem best for the imposed by the rule of the common interest of my estate, all my goods and law; that it is primarily liable for the estate, real, personal, or mixed, wherpayment of debts, and must be first ever found, not heretofore disposed exhausted, unless there is a clear di- of, including the coal under the farm rection that the real estate, or some I now occupy (except the 3 acres repart of it, shall be first so applied.” served); also the lots on Mount
In Trask v. Sturges (1902) 170 N. Washington, and to pay the bequests Y. 482, 63 N. E. 534, reversing (1900) hereinbefore made (without interest), 56 App. Div. 625, 68 N. Y. Supp. 1149, as they have money on hand to do so, it was held that, where land is di
in the order in which they are herein rected to be sold and the proceeds dis
given.” The court in affirming the tributed, the parties beneficially in
decree said: "The power of sale in terested may, if competent and of full
this case was clearly not an absolute age and the gift is not in trust, elect, direction to sell, and thereby to conbefore the conversion has actually vert the realty into money, but was taken place, to take the land; and an enabling authority to carry out the where they have so elected, and the requirements of the will as to payment election has been made known, the of debts and legacies. It had relation power of sale in the executors be
to personal as well as real estate, and comes extinguished and they cannot
defined neither as to its extent, leavthereafter lawfully proceed to exe
ing the matter necessarily to the judgcute it.
ment of the executors as to when and In Jackson ex dem. Ellsworth v.
what to sell. When the purpose of the Jansen (1810) 6 Johns (N. Y.) 73,
will became accomplished by payment it was held that where the object of
of debts and legacies, it is clear that the testator in creating a power of
the testator did not command a sale sale was to make a provision for his wife, the power, not having been ex
of the realty beyond this finished purercised during her lifetime, ceased on
pose. We cannot say that the orphans' her death.
court erred in dismissing the petition In Harvey v. Brisbin (1888) 50 Hun,
when conversion had ceased to be 376, 3 N. Y. Supp. 676, affirmed in
necessary." (1894) 143 N. Y. 151, 38 N. E. 108, it
In Fidler v. Lash (1889) 125 Pa. appeared that the testatrix had di- 87, 17 Atl. 240, the court, in construrected a sale of her property, the pro- ing a power to sell as being for the ceeds to be invested and held in trust widow's benefit and as ceasing at her during the life of her daughter, with death, said: “The devise, as we have remainder over on the latter's death. seen, is to the widow for life, remainThe land was not sold during the der in fee to Sarah Ermentrout and plaintiff below as tenants in common. of converting the land into money to It appears to have then occurred to the pay debts or for distribution. The testator that, for the better and more sole object was to provide for the supcertain support of his widow, it was port of the widow, in case his execuadvisable to authorize his executors, tors considered it necessary to sell for in their discretion, to sell the real es- that purpose. The power was theretate, invest the proceeds, etc.; and he fore exercisable only during her lifeaccordingly created the testamentary time, and upon her death it ceased to power in question, directing the pro- exist. No principle is better settled ceeds of the sale to be invested and in- than that, when the object for which terest paid annually to his widow, with a power has been created has been acthe right to use as much of the princi- complished, or has become impossible pal as might be necessary for her sup- or unattainable, the power itself port. It is very evident that testator's ceases to exist." wife was the chief object of his In Murdock v. Johnson (1870) 7 bounty, and that the power was Coldw. (Tenn.) 605, it was held that created for her benefit, and for no power conferred by will on trustees other purpose. There is nothing in to sell property to pay certain specified the will to indicate that it was in- debts ceased when the debts had been tended to be exercised for the purpose satisfied.
H. C. J.
Gas — rule requiring deposit for service — discrimination - validity.
1. A rule of a gas company operating under a public franchise which requires about 10 per cent of its customers to make a cash deposit or furnish a guarantor that their bills will be paid, while the bills of the other 90 per cent are guaranteed automatically by an employee of the company, is void for discrimination.
[See note on this question beginning on page 1411.] Appeal - absence of prejudice - of the gas company, requiring deposits
suit on behalf of others similarly or guaranties from certain depositors, situated.
cannot appeal from the refusal to per
mit him to sue on behalf of other con2. A gas consumer who receives all
sumers similarly situated. the relief to which he is entitled be- [See 2 R. C. L. 52; 1 R. C. L. Supp. cause of discrimination in the rules 376.]
CROSS APPEALS from a judgment of the Chancery Branch, First Division, of the Circuit Court for Jefferson County, granting partial relief in an action brought to recover the amount of a deposit required of plaintiff by defendant and to enjoin defendant from refusing to serve plaintiff with gas or electricity without such deposit; plaintiff appealing from so much of the judgment as refused him the right to sue for others and for an (196 Ky. 268, 244 8. W. 690.) accounting on their behalf, and defendant appealing from so much as holds the rule requiring deposits discriminatory and grants plaintiff relief. Affirmed on both appeals.
The facts are stated in the opinion of the court.
Messrs. R. Ruthenburg and Joseph Ky. 659, 220 S. W. 318; Oswald v. Solinger, for appellant:
Morris, 92 Ky. 52, 17 S. W. 167; NewSection 25 of the Civil Code of Prac- man, Pl. & Pr. p. 465; 12 R. C. L. p. tice is to be considered as providing 893; Owensboro Gaslight Co. v. Hildetwo separate states of case, in which brand, 19 Ky. L. Rep. 983, 42 S. W. the right to sue for all exists.
351. Union Light, Heat & P. Co. v. Mulligan, 177 Ky. 662, 197 S. W. 1081.
Clarke, J., delivered the opinion of The subject-matter of a controversy
of the court: consists of the right to be, vindicated Appellee owns and operates the and the wrong to be remedied.
gas and electric light plants in Cooper v. Reynolds, 10 Wall. 308, Louisville, under a franchise grant316, 19 L. ed. 931, 932; Hughes V. ed by city ordinance on March 29, Cuming, 165 N. Y. 91, 58 N. E. 794;
1913, and has a monopoly of the Reed v. Muscatine, 104 Iowa, 184, 73 business. Appellant and N. W. 579; Jacobson v. Miller, 41 Mich.
others, but not nearly all citizens, 93, 1 N. W. 1013. The course required by the judg
were required by the company to ment would lead to an injunction
make deposits ranging in amounts against the numerous
from $5 to $100 before gas or elecwhose benefit appellant seeks to sue. tricity would be furnished them.
Illinois C. R. Co. v. Baker, 155 Ky. Appellant instituted this action to 512, 49 L.R.A.(N.S.) 496, 159 S. W. recover the $5 deposit required of 1169.
him, and to enjoin the company Equity, having acquired jurisdic
from refusing to serve him without tion, will retain the case for all pur
such deposit; he also sought to sue poses, in order that full and proper relief may be granted.
for like relief for and on behalf of Sanders v. Herndon, 128 Ky. 437,
about three thousand other citizens 108 S. W. 908.
of whom deposits were required, and This case meets every condition laid
to have the cause referred to the down in Batman v. Louisville Gas & master to ascertain the amounts due E. Co. 187 Ky. 659, 220 S. W. 318. each of them and for an accounting.
Messrs. Alex P. Humphrey and Mat- The city intervened, asking the same thew J. O'Doherty, for appellee: injunctive relief as plaintiff.
The rule in question would have been reasonable and would be upheld
The defendant, after objecting by even had it applied only to those mak
motion to strike and special demuring application for such service after rer to plaintiff suing for others its adoption. Defendant, however, than himself, for answer, set out wishing to leave no ground for a
the rule under which the deposits charge of discrimination, made it ap- were required, denying that it was ply to all its patrons.
discriminatory, although admitting Union Light, Heat & P. Co. v. Mul- that less than 10 per cent of its paligan, 177 Ky. 662, 197 S. W. 1081;
trons had made such deposits. Nairin v. Kentucky Heating Co. 27 Ky.
The chancellor, holding upon final L. Rep. 551, 86 S. W. 676.
submission that the rule under To enable one or more to sue for the benefit of others under $ 25, Civil
which the deposits were made by Code, the parties must have a common plaintiff and others was discrimior general interest in the subject of
natory as enforced by defendant, the litigation, "a joint right." Each
gave him judgment, for the amount depositor in a case like this has an
of his deposit, with interest and interest in, or claim to, only the de
costs, and enjoined the defendant posit made by him. Union Light, Heat & P. Co. v. Mul
from enforcing the rule against ligan, 177 Ky. 670, 197 S. W. 1081; plaintiff unless enforced against all Batman v. Louisville Gas & E. Co. 187 citizens alike, but refusing to per