Opinion
07-21-1887
GIBERSON and Wife v. GIBERSON and others.
A. G. Richey, for complainants.
On bill for construction of will.
A. G. Richey, for complainants.
BIRD, V. C. Joseph Giberson, by his last will, gave all the residue of his real estate to his children, to be equally divided amongst them, and then ordered and directed his executors to sell all of the said estate, "at such times, and in such manner, as they shall think most advisable." The executors therein named renounced, and an administrator with the will annexed was appointed. Doubts having been suggested as to his power to sell, this bill is presented.
In my judgment, this case is plainly within the act which confers the same powers of sale upon administrators with the will annexed that the executors had by the will. I cannot perceive that the executors had confided to them any trust or discretion such as is contemplated in the case of Naundorf v. Schumann, 41 N. J. Eq. 14, 2 Atl. Rep. 609, and in other cases. In the case cited, the executor had power to dispose of the property as he should deem best. He might rent it, for he was directed to divide the profits. In this case there is nothing but the power of sale conferred. But it is thought that the discretion contemplated in Naundorf v. Schumann, supra, is distinctly expressed in the phrase, "at such times, and in such manner, as they shall think most advisable." I do not see any such force in the expression. I think the executors are directed to sell, and nothing more. I think they have no other or greater power, right, trust, or discretion than they would have had had the words quoted been admitted. I think every executor has just so much right, power, trust, or discretion when simply authorized to sell. Every such executor can sell at such times, and in such manner, as he deems most advisable. All will readily acknowledge that he has that much discretion, and that, if he does not exercise it wisely, the courts will interfere. Nor will any one insist that such admission brings the case within the principle of Naundorf v. Schumann. It is only giving practical effect to a wise provision of the statute in a case where the testator has not himself otherwise provided. And, if the case I am deciding is not controlled by Naundorf v. Schumann, certainly it is not by Landing v. Sisters of St. Francis, 35 N. J. Eq. 392. In that case the trust seemedmost clearly to be a personal one. The real estate was given to the person named as executor absolutely; besides which, his control seemed only to terminate when he saw proper to sell and divide.
In construing the force or extent of such enabling statute, the inquirer will be aided by the views of Chief Justice Beasley, as expressed in Weimar v. Fath, 43 N. J. Law, 1, 11. One quotation will suffice: "But the discretion thus appealed to is nothing but the common discretion that is made use of in the transaction of ordinary business."
I think the administrator with the will annexed can convey a good title. I will so advise.