Opinion
05-22-1897
TARLTON v. GILSEY et al.
Flavel McGee and W. A. Heisley, for complainant. Charles D, Corbin, for defendants.
Bill by John J. Tarlton against Mariana Gilsey and others for specific performance of a contract to convey land. Dismissed.
Flavel McGee and W. A. Heisley, for complainant.
Charles D, Corbin, for defendants.
EMERY, V. C. This is a bill for specific performance filed by the purchaser to compel the executors of Andrew Gilsey to carry out a written contract for sale of lands belonging to decedent's estate. The executors by the will had power to sell the lands, which power was conferred expressly upon "such of them as shall qualify and survive"; but only two of the four executors who proved the will signed the contract of sale. These two executors who had not signed the contract refused to join in a deed, and the complainant refused to accept a deed executed only by the two who signed the contract. The written contract of sale, dated May 29, 1896, is between "the executors of the estate of Andrew Gilsey, parties of the first part, and John J. Tarlton, party of the second part," and is signed "Andrew Francis Gilsey, Exc," "Frederick C. Gilsey, Exc," "John J. Tarlton." It purports to be under the hands and seals of the parties, one seal being attached for all parties, opposite to the signatures. It does not appear on the face of the contract itself that there were any other executors of the estate, and from the undisputed evidence in the cause it appears that it was not the intention of the parties that the other two executors should execute the contract of sale. Duplicate contracts in the above form were exchanged at the time of the signing of the agreements by these three persons, and the payment of $500, portion of the $6,000 purchase money, was then made. As to compelling all of the executors to join in the conveyance, the bill is based on the allegations that the two executors, in signing the contract and receiving the money, acted not only for themselves, but as the representatives of all the executors, and with their consent and under their instructions. By the terms of the contract $500 was to be paid on the signing of the agreement, which was paid, $2,500 additional was to be paid, on passing the title, on or before July 1, 1896, and $3,000 to be secured by bond and mortgage. The complainant duly tendered the $2,500, and the bond and mortgage for $3,000; but the two executors who did not join on the contract refused to convey according to the terms of the contract, and the complainant declined to accept a deed from the two executors who did sign. Subsequent to this tender and refusal, the defendant executors who had proved the will conveyed the premises to the defendant Baxter, who is by the bill charged with being a purchaser without consideration and with notice of the contract. I find, on the evidence, that although Baxter paid the purchase money, about $7,000, he did have, through his attorney, sufficient notice of the contract, or of facts to put him on inquiry, so that he is not a bona fide purchaser. The main issues of fact and law relate, therefore, to the contract with the executors and its enforcement against all of the executors.
The defenses set up by the two executors, Andrew and Frederick, who answer separately, are that in making the contract they did not represent the other two executors, and did not make the contract by their consent or under their instructions, and that these two repudiated the contract and refused to execute it. They further, by way of cross bill annexed to the answer, allege that the contract was made by them relying upon representations, made by complainant, that the property was purchased by him for a residence, that these representations were false, and that complainant in fact purchased the property for a steamboat landing, which it is alleged would depreciate the other lands belonging to the estate. They ask, therefore, that the contract may be declared void and be delivered up. Complainant, by replication to the cross bill, denies these charges. The two executors who did not join in the contract, together with the two other executors named in the will, who did not prove the will, and who are also parties to the suit, deny that the executors Andrew and Frederick represented them in signing the agreement or making the contract, or acted with their consent or under their instructions, or that it was the intention of the executors to bind them, and deny that they are bound by the contract. Baxter, the subsequent purchaser, by his answer, denies the power of the two executors to bind the estate by their contract, sets up his purchase from the executors on July 1, 1896, for $7,620, then paid to them, and their deed to him for the premises, but does not deny notice of complainant's contract at the time of his purchase.
Upon the pleadings and proofs in the cause, I reach the conclusion that specific performance of the contract by all of the executors must be denied. The right of the executors to convey lands of the testator in this case is solely by virtue of the power conferred upon them by the testator's will. This power to sell is given by the will to those who qualify and survive, and all who have qualified must join in the deed in order to pass the title. This principle is not disputed, but it is contended that where there are several executors one of them may delegate to another the power to act for him, and that this delegationmay be express or by course of conduct. As to some matters relating to the acts of executors in the settlement of estates this may be true, but where the question relates to the power to sell lands, which is by its very nature a personal trust and confidence in the executors, the exercise of this trust and confidence reposed by the testator cannot be delegated by one executor to another, either by power of attorney or otherwise. As stated by Chancellor Kent in Berger v. Duff (1820) 4 Johns. Ch. 369, the principle "Delegatus non potest delegari" applies in such cases. "The power given to executors, in such cases," he says, "is a personal trust and confidence, to be exercised by them jointly according to their best judgment. One executor, in this case, cannot commit his judgment and discretion to the other, any more than to a stranger." In this case Chancellor Kent refused to require a purchaser to take a deed under an agreement of sale signed by one executor for himself, and under a written power of attorney from the other executor authorizing the executor who sold to sell on such terms as he deemed expedient. The agreement by one executor under the power of attorney was held not to be a due execution of the power granted by the will. The same principle is stated in 1 Sugd. Powers, *214, and is put upon the same grounds. In O'Reilly v. Keim (1896) 54 N. J. Eq. 418, 427, 34 Atl. 1073, it was also held (page 427, 54 N. J. Eq., and page 1077, 34 Atl.) that joint powers of sale must be jointly exercised, and each of the joint donees of the power must exercise his own discretion and will in the sale. These authorities go at least to the extent that where the contract to convey, entered into by one executor for himself and another executor, is in fact an exercise by one executor for the other of the discretion conferred by the will, such contract is not a due execution of the power given by the testator. Whether the same rule would apply if all of the executors, by previous consultation and joint exercise of their discretion, had fixed the terms of sale, so that there remained no longer any discretion to be exercised, may admit of question. In such eases it may perhaps be held that one executor might then be authorized, either by parol or in writing, to make a contract to convey as an attorney for the other and in such other's name, which would be enforceable. This is stated to be the rule with reference to powers of appointment. 1 Sugd. Powers, *214.
But this rule, or qualification of the general rule, is not applicable in the present case, for two reasons. In the first place, the contract was not in fact signed, and does not purport to be signed, by the two executors who did sign, or either of them, as the attorneys of the two who did not sign, but purports to be only their own contract as the executors of the estate, and these two executors who did not sign are therefore not bound by any contract in writing to convey these lands, signed by them or by their agent lawfully authorized, as is required by the statute of frauds. In the second place, the evidence fails to show that the sale at the price fixed was with the previous consent of the two executors who did not sign. Complainant's evidence does show, as I conclude, that the executors who did sign represented to complainant that they had consulted with the other executors, and that the sale at the price fixed ($6,000) was by their consent; but this evidence only affects the two who signed. As to the other executors the proof is, by the only witnesses called on the subject, that the price fixed on the consultation of all of the executors previous to the agreement was $6,500. After the agreement to sell at $6,000 was reported to them, they refused to approve it; and although the circumstances of the case are such as to show that other reasons than this difference in the price to be paid by complainant may have brought about this refusal, yet if in fact the price had been previously fixed at $6,500, and no less, as the witnesses all state, I cannot hold that the contract for a sale at $6,000, as executed by the two executors, was in fact binding on the other executors, as an execution expressly authorized by them, even supposing it could be so authorized. If not authorized by them, then the executors who did not sign, not having exercised the trust confided to them by the will, had the right to refuse to approve it. Nor can I, on complainant's case against these executors, which involves only the question of previous authority to sign the contract, decide upon the sufficiency of their reasons for refusing to approve the contract subsequently. Complainant was obliged to call these executors as his own witnesses upon the question of the price fixed for sale at their consultation before the contract, and three of the executors, Andrew, Frederick, and Mary, swear positively that $6,500 was the limit fixed, and that, when the sale at $6,000 was reported, Mary and Victor, the other executor, refused to approve. Victor was not called. This is contrary to Andrew's and Frederick's statement made to complainant at the time of the contract, and, so far as they are concerned, might, perhaps, in view of all the circumstances of this case, be considered less reliable than their statements at the time; but it is the only evidence to affect the executors Mary and Victor, and I am not justified in finding against them that there is any sufficient evidence that this sale for $6,000 was made with their consent, and that they had previously authorized Andrew and Frederick to sell for that price. If they had not in fact so previously authorized them, then it seems entirely clear that they have not exercised the trust and confidence reposed in them personally by the testator in relation to the sale of this land, and therefore the agreement executed by the other executors would not be sufficient execution of the power under the will, even if the other executors had signedtheir names as parties to the contract. The decision of our courts, referred to by the counsel for complainant, on the powers of an attorney to sign a contract, are all cases in which the question arose on the authority conferred on an agent by his principal, and were not cases of executions of joint powers by donees of the power, nor did they involve the principle of the right to delegate powers which were themselves delegated by will or otherwise. Long v. Hartwell, 34 N. J. Law, 116; Milne v. Kleb, 44 N. J. Eq. 378, 14 Atl. 646; Doughaday v. Crowell, 11 N. J. Eq. 201.
The bill for specific performance must therefore be dismissed upon this ground. The question arising on the cross bill is one of fact, and, without going into the evidence in detail, I will merely state that the charge of misrepresentation is not sustained, and the cross bill is dismissed. At the argument application was made by defendants to dismiss the cross bill without prejudice, but this was not consented to, and it is proper that the dismissal should be absolute and on the merits.