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lands, and in codicils to the will the lands are given to different legatees from those first named, without revoking in express terms the authority to sell, that authority remains and must control, unless suspended or vacated for cause by the court. Anderson v. Butler, 31 S. Car. 183.

Testator bequeathed a portion of his estate to B, his son, who was insolvent. B's son, H, agreed with B, that if the latter would consent to the substitution of H as legatee, he would dispose of all the property, excepting a certain sum, as B should direct. Testator thereupon revoked said bequest and made a similar one in favor of H. After testator's death, B and H made another agreement, by which H conveyed a part of the property to D, to be held for the use of B. By the last agree ment B was to control and dispose of a certain plantation so conveyed to D as he saw fit, but in case of his death without marriage, and further issue, D was to reconvey it to H. It was held that B's power of appointment was extinguished by the last agreement, and that he had no estate in the plantation subject to devise by him, but that on his death without further issue, H was entitled to a reconveyance. Hill v. Taylor, 81 Ga. 516.

A contract by a testator to sell land does not revoke a power to sell conferred upon his executors. Douglass v. Dickson, 11 Rich. (S. Car.) 417.

Where a trustee under a will is clothed with power to sell, a sale by him is not vacated by reason of the estate being subsequently declared insolvent. But the proceeds of the sale would go to the representative for distribution among the creditors. Hitchcock v. U. S. Bank, 7 Ala. 386. See Bentham v. Smith, i Cheves, Eq. (S. Car.) 33.

A power given to executors to sell land becomes inoperative when the estate is settled, or all claims against it barred by lapse of time, and no object of the testator remains to be attained. Ward v. Barrows, 2 Ohio St. 241. And if the power to sell is given for the purpose of paying legacies, it ceases when the legacies are all paid. Chamberlain v. Taylor, 36 Hun (N. Y.) 24; Hovey v. Chisholm, 56 Hun (N. Y.) 328; Swift's Appeal, 87 Pa.

St. 502.

A testatrix devised her estate, both real and personal, to her four children

in equal proportions, but no part of it was specifically devised. By a codicil to her will, the testatrix authorized her executors to sell the whole or any part of her real estate, in their discretion, the proceeds of sale or sales to be disposed of by them under the directions contained in the will. A part of the real estate was sold by the executors, but the purchaser declined to accept a deed therefor upon the ground that the executors could not give him a perfect title; that having finally settled the estate of their testatrix and made a final distribution in the orphans' court before the agreement to sell was entered into, they had no power to sell. Held, that the power of the executors to sell the real estate would not cease with the settlement of the personal estate, but would continue until the whole of the real estate was divided among the several devisees, either by the act of the parties or by legal proceedings. Hoffman v. Hoffman, 66 Md. 568.

A power by an executor to sell for payment of debts under order of court must be exercised within a reasonable time. Recaid v. Williams, 7 Wheat. (U. S.) 59; Jackson v. Jansen, 6 Johns. (N. Y.) 73; Sharpstee v. Tillou, 3 Cow. (N. Y.) 651.

A fund was settled for the husband for life, or until he should become an insolvent debtor, with the remainder to the wife for life, remainder to their children or issue, as the survivor should appoint, and in default of appointment, in trust for the children then living and the issue of, deceased children. The husband's interest ceased by his insolvency, and his wife afterwards died. Held, that the interests of the children and their issue in default of appointment thereupon became vested, and could no longer be varied by the execution by the surviving husband of his power of appointment. Haswell v. Haswell, 2 DeG. F. & J. 456; 6 Jur., N. S. 1223; 3 L. J. Ch. 97.

If the power to sell is limited to a specified time, if not executed within that time it is forever gone. Lockett v. Hill, 1 Wood (U. S.) 552.

But it has recently been held in New York that a power given to an executor to sell real estate and divide the proceeds at any time within three years, remains in force even after the expiration of the period mentioned. Waldron v. Schlang, 47 Hun (N. Y.) 252.

A trustee was empowered to sell land at private sale before November 5th, or, if then unsold, to sell it at public sale on that day. He sold at public sale on November 5th, but the purchaser failed to comply with his bid. Instead of compelling him to take the title, the trustee advertised and sold again to another. It was held that the second sale was void; the first having exhausted the power. Simmons v. Baynard, 30 Fed. Rep. 532.

The power may also be limited to the lifetime or majority of the donor, the donee or the party to be benefited. Thus in Hubbard v. Gilbert, 25 Hun (N. Y.) 596, where A paid the consideration for land purchased of D, and procured the conveyance to be made to himself, to B, and to C, as joint tenants. B and C contemporaneously executed a sealed instrument agreeing to convey the land as A should appoint. A died without appointing. Held, that the fee in the land descended to his heirs. The same effect is Frazier v. Frazier, 2 Leigh (Va.) 642. There the testator bequeathed property to his brother, to be by him sold, and the proceeds distributed among the testator's next of kin, as the brother should judge of their deserts. The brother died without having made any appointment. It was held that the property bequeathed was distributable as in case of intestacy.

In a case decided by the Supreme Court of Pennsylvania, a testator gave to his wife the income of his personalty, and all his realty, for life. The executors, who were the wife and two of the devisees in remainder, were authorized at any time after his decease to convey any or all of the realty. The proceeds of all such sales were to be held for the purpose declared in relation to the realty, and all investments thereof, as well as of the personalty, were to be made in designated securities. Immediately after the wife's death, the whole of the real and personal estate, including the proceeds of all real estate sold by the executors in the wife's lifetime, were to be distributed as provided in the will. It was held (Judge Mitchell dissenting), that the power of sale could be exercised only in the lifetime of the wife. Wilkinson v. Buist, 124 Pa. St. 253; 10 Am. St. Rep. 580, and in a subsequent case, where the testator devised his estate to his widow for life, remainder to plaintiff and others, "and, lastly, if my executor, hereinafter men

tioned, see proper to do so, the real estate may be sold by him, and the money accruing therefrom, together with all other moneys, is to be put out to interest, and the interest paid over to my wife every year," it was held by the same court, the same judge dissenting, that the power of sale thus conferred was limited to the lifetime of the widow. Fidler v. Lash, 125 Pa. St. 87.

A testator in Oregon gave the residue of his estate to his executor and trustee, "with full power to sell and convey any or all of said estate, and convert the same into money," in trust for the use and benefit of H, who was made sole legatee, the proceeds to be paid over to her. It was held the power of sale ceased on the death of H. Harmon v. Smith, 38 Fed. Rep. 462.

But in Millspaugh v. Van Zandt, 55 Hun (N. Y.) 463,the power was held to survive the death of the wife. The facts were as follows: A testator devised land in trust to his executors, to hold it "for the purposes of the trust herein declared for and during the natural life of my said wife, unless before that time the sum of $90 per acre can be realized therefor, or unless, before that time, in the judgment of all my executors, it shall be deemed to be for the best interest of my said wife and children that the same be sold at a less price," and in each case the executors were authorized to sell the land and make deeds thereto. The will further directed: "When the farm shall be sold as ... provided, I direct my executors to convert all my estate into cash, and to divide the proceeds into such parts

as will give one share to my wife, if then living." It was held that the executors' title to the land, and power to sell the same, did not cease on the death of the wife.

A will provided that, when the testator's eldest son should become of age, there should be divided between the children "any balance which may remain of my estate after the payment of my debts, and the sale of so much of my estate as shall be sufficient, in the opinion of my executor to support and educate my children." It was held that the executor's authority to sell land to make provision for the support and education of the younger children did not terminate on the majority of the eldest son. Hallum v. 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.1 A mortgage by a tenant for life having a power to make leases, or by a married woman by virtue of any beneficial power, does not extinguish or suspend the power, but the power is bound by the mortgage.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 exercised with the consent of the grantor, the death of the grantor before a sale is made extinguishes the power. Kissam v. Dierkes, 49 N. Y. 602. So, too, where a discretion is lodged with the donee of the power. Thus in a case arising in Tennessee a testator authorized his executor by name to sell any of his real estate "if he may think it advisable for the interest and benefit of my children," and vest the proceeds, "or such part thereof as he may think right," in other real estate, for the joint benefit of the testator's wife and children, "the part coming to my wife to revert to my children at her death." It was held that the power was personal and discretionary in the executor named, and, on his refusing to qualify, could never be executed. Jones v. Fulghum, 3 Tenn. Ch. 193. And in Sites v. Eldredge, 45 N. J. Eq. 632, it was held that where a power of sale annexed to a devise of the fee was to be exercised at the discretion of the devisee, and without designating any particular object for which it should be exercised, it expires at the death of the devisee.

A testator directed his executor, who was his son, to pay his debts out of his property, real and personal, empowered him to sell his land, and directed him to divide the proceeds between his son and daughter, his only heirs. The son and daughter took possession of the land by tenants, and occupied it as tenants in common for nine years after their father's death. A creditor of the deceased laid by and took no proceedings to enforce his right during the same period, his debt being kept alive by payments by the son. At the end of this period a judgment creditor of the son caused execution to be levied upon his interest in the land, and the same brought to sale by the sheriff. After the sheriff's sale, and before de

livery of the deed, the son and executor sold the land as executor and with the proceeds paid his father's creditor. It was held that the purchaser at sheriff's sale took a title superior to that of the purchaser at the executor's sale. Hackensack Sav. Bank v. Morse, 46 N. J. Eq. 161.

1. 4 New York Rev. Stat. (Banks' ed.), ch. 1, §§ 67, 102; pp. 2440, 2448; Hutchings v. Baldwin, 7 Bosw. (N. Y.) 241; Selden v. Vermilyea, 1 Barb. (N. Y.) 61.

Executors were directed and empowered by the testator to sell all the land of which he should die seised, at such time as they might deem best, and to invest the proceeds, together with the personalty belonging to the estate, and pay the income to his two daughters during their lives, and at the death of either, to pay her share of the principal to her children. It was held that the power of sale would cease, as to the moiety of a daughter dying, at the time of her decease. Harvey v. Brisbin, 50 Hun (N. Y.) 376.

2. 4 New York Rev. Stat. §§ 90–91 (Banks' ed.), p. 2447; (1882) p. 2190.

These sections, so far as they affect married women, refer only to beneficial powers. Marvin v. Smith, 56 Barb. (N. Y.) 600.

3. 2 Chance Powers 623, § 3230; Burleigh v. Clough, 52 N. H. 267; 13 Am. Rep. 23; Harrison v. Battle, I Dev. & B. Eq. (N. Car.) 213.

Where an estate is limited to such uses as A may appoint, and in default of appointment to himself in fee, the power is not merged in the fee. I Sugd. Pow. *105; 4 Kent Comm. *348; Sir Edward Clere's Case, Rep. 176; Goodhill v. Brigham, 1 B. & P. 192; Cox v. Chamberlain, 4 Ves. Jr. 631; Tickner v. Tickner, 3 Atk. 742; Maundrell v. Maundrell, 10 Ves. Jr. 246. See 7 Ves. Jr. 567.

INDEX.

Part payments, I
Part performance, i
Party Walls, 3
Alteration, II
Contribution, 13
Definition, 3

Erection and use, II

How created, 4

Implied grant, 7

Municipal ordinance concerning, 9
Prescription, 8

Statutory regulations, 8

Tearing down and repairing, 12

When cease to be such, 9

Patent ambiguity, 19
Patent for land, 19

Patent law, 20

Abandonment of claim, 46

Actions concerning patents, 70
Actions on contracts, 139
Amendment to claim, 30
Answer in equity, 98
Anticipation, 53

Anticipation by publication, 57
Appeal, 32

Art or process, 66
Assignment of patent, 130

Bill in equity to compel patent, 33
Caveats, 25

Claims and specifications, 29

Combination, process, product, ma-

chine, 44

Commissioner, 24

Composition of matter, 68

Concealed invention, 57

Constitutional provisions, 23

Contempts, 120

Contracts respecting patent rights, 137

Costs of suit, 118

Date of application, 64

Date of invention, 52

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Experiments, 55

Extension of patent, 122

Application of payments, 234

Burden of proving, 201

By giving higher security, 185
By note, bill or check, 167

By order, 184

By transfer of certificate of deposit,
184

By whom made, 187

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