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lands, and in codicils to the will the in equal proportions, but no part of it lands are given to different legatees from was specifically devised. By a codithose first named, without revoking in cil to her will, the testatrix authorized express terms the authority to sell, that her executors to sell the whole or any authority remains and must control, part of her real estate, in their discreunless suspended or vacated for cause tion, the proceeds of sale or sales to be by the court. Anderson v, Butler, 31 disposed of by them under the direcS. Car. 183.

tions contained in the will. A part of Testator bequeathed a portion of his the real estate was sold by the execestate to B, his son, who was insolvent. utors, but the purchaser declined to B's son, H, agreed with B, that if the accept a deed therefor upon the ground latter would consent to the substitution that the executors could not give him of H as legatee, he would dispose of all a perfect title; that having finally the property, excepting a certain sum, settled the estate of their testatrix and as B should direct. Testator there made a final distribution in the orupon revoked said bequest and made a phans' court before the agreement to similar one in favor of H. After testa. sell was entered into, they had no tor's death, B and H made another power to sell. Held, that the power agreement, by which H conveyed a of the executors to sell the real estate part of the property to D, to be held would not cease with the settlement of for the use of B. By the last agree. the personal estate, but would continue ment B was to control and dispose of a until the whole of the real estate was

417.

as he saw fit, but in case of his death either by the act of the parties or by without marriage, and further issue, D legal proceedings. Hoffman v. Hoffwas to reconvey it to H. It was held man, 66 Md. 568. that B's power of appointment was power by an executor to sell for extinguished by the last agreement, payment of debts under order of court and that he had no estate in the planta- must be exercised within a reasonable tion subject to devise by him, but that time. Recaid v. Williams, 7 Wheat. on his death without further issue, H (U. S.) 59; Jackson v. Jansen, 6 Johns. was entitled to a reconveyance. Hill v. (N. Y.) 73; Sharpstee v. Tillou, 3 Cow. Taylor, 81 Ga. 516.

(N. Y.) 651. A contract by a testator to sell land A fund was settled for the husband does not revoke a power to sell con- for life, or until he should become an ferred upon his executors. Doug- insolvent debtor, with the remainder lass v. Dickson, ni Rich. (S. Car.) to the wife for life, remainder to their

children or issue, as the survivor should Where a trustee under a will is appoint, and in default of appointment, clothed with power to sell, a sale by in trust for the children then living him is not vacated by reason of the es- and the issue of deceased children. tate being subsequently declared in- The husband's interest ceased by his insolvent. But the proceeds of the sale solvency, and his wife afterwards died. would go to the representative for dis- Held, that the interests of the children tribution among the creditors. Hitch- and their issue in default of appointcock v. U. S. Bank, 7 Ala. 386. See ment thereupon became vested, and Bentham v. Smith, i Cheves, Eq. (S. could no longer be varied by the exeCar.) 33.

cution by the surviving husband of his A power given to executors to sell power of appointment. Haswell v. land becomes inoperative when the es- Haswell, 2 DeG. F. & J. 456; 6 Jur., N. tate is settled, or all claims against it S. 1223; 3 L. J. Ch. 97: barred by lapse of time, and no ob- If the power to sell is limited to a ject of the testator 'remains to be at specified time, if not executed within tained. Ward v. Barrows, 2 Ohio St. that time it is forever gone. Lockett 241. And if the power to sell is given v. Hill, 1 Wood (U. S.) 552. for the purpose of paying legacies, it But it has recently been held in New ceases when the legacies are all paid. York that a power given to an execuChamberlain v. Taylor, 36 Hun" (N. tor to sell real estate and divide the Y.) 24; Hovey v. Chisholm, 56 Hun proceeds at any time within three (N. Y.) 328; Swift's Appeal, 87 Pa. years, remains in force even after the St. 502.

expiration of the period mentioned. A testatrix devised her estate, both Waldron v. Schlang, 47 Hun (N. Y.) real and personal, to her four children 252.

A trustee was empowered to sell tioned, see proper to do so, the real esland at private sale before November tate may be sold by him, and the money 5th, or, if then unsold, to sell it at pub. accruing therefrom, together with all lic sale on that day. He sold at public other moneys, is to be put out to intersale on November 5th, but the pur- est, and the interest paid over to my chaser failed to comply with his bid. wife every year," it was held by the Instead of compelling him to take the same court, the same judge dissenting, title, the trustee advertised and sold that the power of sale thus conagain to another. It was held that the ferred was limited to the lifetime of second sale was void; the first having the widow. Fidler v. Lash, 125 Pa. St. exhausted the power. Simmons v. 87. Baynard, 30 Fed. Rep. 532.

A testator in Oregon gave the resiThe power may also be limited to the due of his estate to his executor and lifetime or majority of the donor, the trustee, “with full power to sell and donee or the party to be benefited. convey any or all of said estate, and Thus in Hubbard v. Gilbert, 25 Hun convert the same into money," in trust (N. Y.) 596, where A paid the consid- for the use and benefit of H, who was eration for land purchased of D, and made sole legatee, the proceeds to be procured the conveyance to be made to paid over to her. It was held the himself, to B, and to C, as joint tenants. power of sale ceased on the death of B and C contemporaneously executed H. Harmon v. Smith, 38 Fed. Rep. 462, a sealed instrument agreeing to convey But in Millspaugh v. Van Zandt, 55 the land as A should appoint. A died Hun (N. Y.) 463, the power was held to without appointing. Held, that the fee survive the death of the wife. The facts in the land descended to his heirs. were as follows: A testator devised The same effect is Frazier v. Frazier, 2 land in trust to his executors, to hold Leigh (Va.) 642. There the testator be- it "for the purposes of the trust herein queathed property to his brother, to be declared for and during the natural by him sold, and the proceeds dis- life of my said wife, unlėss before that tributed among the testator's next time the sum of $90 per acre can be of kin, as the brother should judge of realized therefor, or unless, before their deserts. The brother died with that time, in the judgment of all my out having made any appointment. It executors, ... it shall be deemed was held that the property bequeathed to be for the best interest of my was distributable as in case of in- said wife and children that the same testacy.

be sold at a less price," and in each In a case decided by the Supreme case the executors were authorized to Court of Pennsylvania, a testator gave selt the land and make deeds thereto. to his wife the income of his personalty, The will further directed: “When the and all his realty, for life. The execu farm shall be sold as ... protors, who were the wife and two of the vided, I direct my executors to con. devisees in remainder, were authorized vert all my estate into cash, and to at any time after his decease to convey divide the proceeds into such parts any or all of the realty. The proceeds ... as will give one share to my of all such sales were to be held for the wife, if then living." It was held that purpose declared in relation to the re- the executors' title to the land, and alty, and all investments thereof, as power to sell the same, did not cease well as of the personalty, were to be on the death of the wife, made in designated securities. Imme- A will provided that, when the tesdiately after the wife's death, the whole tator's eldest son should become of of the real and personal estate, includ- age, there should be divided between ing the proceeds of all real estate sold the children "any balance which may by the executors in the wife's lifetime, remain of my estate after the payment were to be distributed as provided in of my debts, and the sale of so much the will. It was held (Judge Mitchell of my estate as shall be sufficient, in dissenting), that the power of sale the opinion of my executor to support could be exercised only in the lifetime and educate my children." It was of the wife. Wilkinson v. Buist, 124 held that the executor's authority to Pa. St. 253; 10 Am. St. Rep. 580, and sell land to make provision for the in a subsequent case, where the testator support and education of the younger devised his estate to his widow for life, children did not terminate on the remainder to plaintiff and others, "and, majority of the eldest son. Hallum v. lastly, if my executor, hereinafter men. Silliman (Tex. 1890), 14 S. W. Rep. 797.

The New York statute provides that when the purposes of a power are accomplished, the power is at an end. A mortgage by a tenant for life having a power to make leases, or by a mar. ried woman by virtue of any beneficial power, does not extinguish or suspend the power, but the power is bound by the mort. gage.2

4. Merger.—There is nothing incompatible in the co-existence in the same individual of an interest and a power, and the general rule is that there is no merger, even though the interest and the power are created by the same instrument.3

Where the power of sale is only to be livery of the deed, the son and executor exercised with the consent of the sold the land as executor and with the grantor, the death of the grantor proceeds paid his father's creditor. It before a sale is made extinguishes was held that the purchaser at sherthe power. Kissam v. Dierkes, 49 iff's sale took a title superior to that of N. Y. 602. So, too, where a dis- the purchaser at the executor's sale. cretion is lodged with the donee of Hackensack Sav. Bank v. Morse, 46 N. the power. Thus in a case arising in J. Eq. 161. Tennessee a testator authorized his 1.4 New York Rev. Stat. (Banks' executor by name to sell any of his real ed.), ch. 1, $$ 67, 102; pp. 2440, 2448; estate "if he may think it advisable for · Hutchings v. Baldwin, 7 Bosw. (N. the interest and benefit of my chil. Y.) 241; Selden v. Vermilyea, 1 Barb. dren," and vest the proceeds, “or such (N. Y.) 61. part thereof as he may think right," in Executors were directed and emother real estate, for the joint benefit of powered by the testator to sell all the the testator's wife and children, "the land of which he should die seised, at part coming to my wife to revert to my such time as they might deem best, children at her death.” It was held and to invest the proceeds, together that the power was personal and dis with the personalty belonging to cretionary in the executor named, and, the estate, and pay the income to his on his refusing to qualify, could never two daughters during their lives, and be executed. Jones v. Fulghum, 3 at the death of either, to pay her share Tenn. Ch. 193. And in Sites v. El of the principal to her children. It dredge, 45 N. J. Eq.632, it was held that was held that the power of sale would where a power of sale annexed to a devise cease, as to the moiety of a daughter of the fee was to be exercised at the dying, at the time of her decease. discretion of the devisee, and without Harvey v. Brisbin, 50 Hun (N. Y.) designating any particular object for 376. which it should be exercised, it expires 2. 4 New York Rev. Stat. 88 90-91 at the death of the devisee.

(Banks' ed.), p. 2447 ; (1882) p. 2190. A testator directed his executor, who These sections, so far as they affect was his son, to pay his debts out of his married women, refer only to beneproperty, real and personal, empowered ficial powers. Marvin v. Smith, 56 him to sell his land, and directed him Barb. (N. Y.) 600. to divide the proceeds between his son3. 2 Chance Powers 623, $ 3230; and daughter, his only heirs. The son Burleigh v. Clough, 52 N. H. 267; 13 and daughter took possession of the Am. Rep. 23; Harrison v. Battle, I land by tenants, and occupied it as Dev. & B. Eq. (N. Car.) 213. tenants in common for nine years after where an estate is limited to such their father's death. A creditor of the uses as A may appoint, and in default deceased laid by and took no proceed. of appointment to himself in fee, the ings to enforce his right during the power is not merged in the fee. I same period, his debt being kept alive Sugd. Pow. *105; 4 Kent Comm. *348; by payments by the son. At the end Sir Edward Clere's Case, 6 Rep. 176; of this period a judgment creditor of Goodhill v. Brigham, 1 B. & P. 192; the son caused execution to be levied Cox v. Chamberlain, 4 Ves. Jr. 631; upon his interest in the land, and the Tickner v. Tickner, 3 Atk. 742; Maun: same brought to sale by the sheriff. drell v. Maundrell, ro Ves. Jr. 246. After the sheriff's sale, and before de. See 7 Ves. Jr. 567.

INDEX.

Part payments, i

Patent law-Continued.
Part performance, i

Final injunction, 112
Party Walls, 3

Imitating name of patentee, 124
Alteration, 11

Improvement, 69
Contribution, 13

Infringement suits, defenses to, 85
Definition, 3

Interference, 31
Erection and use, it

Issue, 34
How created, 4

Jurisdiction of suits, 145
Implied grant,

Machine, 67
Municipal ordinance concerning, 9 Marking unpatented article, 125
Prescription, 8

Models, 26
Statutory regulations, 8

New trial, 115
Tearing down and repairing, 12

Novelty in combinations, 60
When cease to be such, 9

Novelty with reference to foreign
Patent ambiguity, 19

inventions, 59
Patent for land, 19

Oath to application, 26
Patent law, 20

Patentable Novelty, 49
Abandonment of claim, 46

Patent office, 24
Actions concerning patents, 70

Pirating patentee's name, 125
Actions on contracts, 139

Plea in equity, 96
Amendment to claim, 30

Practice in equity, 108
Answer in equity, 98

Practice of office, 25
Anticipation, 53

Practice on appeal, 32
Anticipation by publication, 57

Preliminary injunction, 77
Appeal, 32

Proceedings on accounting, 117
Art or process, 66

Property in patents, 128
Assignment of patent, 130

Property right in un patented inven-
Bill in equity to compel patent, 33

tion, 23
Caveats, 25

Public use, 60
Claims and specifications, 29

Recording assignment, 136
Combination, process, product, ma Re-hearing, 115
chine, 44

Re-issue, 36
Commissioner, 24

Repeal of Patent, 127
Composition of matter, 68

Royalty, 138
Concealed invention, 57

Special actions relating to patents,
Constitutional provisions, 23

123
Contempts, 120

Specifications, 27
Contracts respecting patent rights, 137 Surrender, 37
Costs of suit, 118

Testimony for use in office, 31
Date of application, 64

Utility, 62
Date of invention, 52

Paternity, 146
Delay in office, 30

Pauper, 146
Demurrer in equity, 97

Pawn, Pawnbroker, 146
Diligence necessary, 53

Payment, 148
Disclaimer, 34

Application of payments, 234
Drawings, 29

Burden of proving, 201
Estoppel by application, 46

By giving higher security, 185
Evidence in action, 101

By note, bill or check, 167
Examination by commissioner, 30 By order, 184
Examiners in chief, 25

By transfer of certificate of deposit,
Experiments, 55

184
Extension of patent, 122

By whom made, 187

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