#### *Caroline Withers and others vs. Richard*Yeadon, *adm'r.*

Testator devised his real estate and negroes to his son G. W. in trust, (1) to apply the rents, issue and profits, to the use of himself and family, and the education of his children; and (2) to give or devise by deed or will, the said property, (and the rents-, issues and profits thereof, over and above what he should apply to the uses aforesaid) “ unto all or any child or children by him begotten, or *to*be begotten, in such way and manner, and in such proportions, and for such uses, estates and interests, as he shall think Stand proper.” G. *W.*died, leaving a will in force, whereby he devised the whole of his estate to his wife, with directions to his executrix and executor, (his wife and son) to act under his “ father’s will, in trust in every respect and manner intended by their grand-father.” *Held,*(1) that the legal title was vested in G. W. coupled with a power or trust, to appoint at his discretion, among his children; (2) that the power could not be delegated ; (3) that as G. W. had neglected to execute the power, his children were entitled to divide the property equally.

The distinction between mere naked powers and trusts considered.

Equity will never aid the non-execution of a mere power, but where there is a trust, it will interfere, and will not permit accident, or the negligence of the trustee, to disappoint the interests of those for whose benefit he is called on *to*execute it.

Where property is given to one, enabling him to execute a power in a discretionary manner, he is a trustee ; and if he does not execute the power, the class of persons among whom the bounty was to be distributed, shall not he disappointed by his neglect, but shall take equally.

The executrix of G. W. leased some of the lands of the estate of his father, and covenanted that at the expiration of the leases, whatever buildings *325the tenants might erect should be purchased *by*her or her representatives, at a fair valuation. Held, that the leases were not binding on the children of G. W. but that the tenants were entitled to compensation for their improvements.

*Before*Johnston, Ch. *at*Charleston, *February,*1844.

This case came before the court on exceptions to the master’s report. The report stated that John Wagner died on the 3d May, 1797, leaving a will, by which he devised his lands and ne-groes to his son George Wagner, in trust for certain uses and purposes therein expressed. That George Wagner was appointed the sole executor of the will, and that he qualified thereon. That George. Wagner died in 1808, leaving a will, of which he appointed his wife, Ann Wagner, executrix, and his son John Wagner, executor. That George Wagner left surviving him, his widow Ann and eight children, some of whom had died before the filing of this bill, leaving issue. Mrs. Wagner, the widow of George, qualified on the will of her husband, and died intestate in 1843. The defendant, Richard Yeadon, administered on her estate, and also on the estates of John and George Wagner severally, with the wills annexed. The report further stated, that in 1840 Mrs. Ann Wagner leased, for seven years, three lots in the city of Charleston, belonging to the estate of John Wagner. Two of these leases contained covenants, “ that at the expiration of the leases," whatever buildings the tenants may erect shall be purchased by Mrs. Wagner or her.representatives, at a fair valuation, to be made by two disinterested persons, one to be chosen by each of the parties — if they differ, to call in an umpire.”

The decree of his Honor, the Chancellor, is as follows:

The only one of the many questions in this cause which has been argued to any extent, before me, relates to the execution of the power conferred on George Wagner, sen. by the will of his father, John Wagner, the elder.

That will is in the following terms :

“ I give, devise and bequeath all my real estate, of every kind and nature whatsoever, and also, all the negroes and other slaves of whom I may die possessed, unto my beloved son, George Wagner, upon the special trust and confidence that.he will receive, take and apply the rents, issues and profits of my said real estate and slaves, to and for the use, behalf, mainte*326nance and support of himself and family, and education of his child or children, begotten or to be begotten, in such way and manner and in such proportions as he may, from time to time, deem requisite and proper. And also, upon the further trust and confidence that he, my said son, shall and will give, devise, limit, direct and appoint, by his last will and testatment, duly executed, or by any deed in writing, to take effect in his lifetime, all my said real estate and my said slaves, (and the rents, issues, profits and increase thereof, over and above what he may apply to the use, maintenance and support ot his family and education of his children as aforesaid,) unto all or any *child or children*by him begotten or to be begotten, in such way and manner, and in such proportions, and for such uses, estates and interests as he shall think fit and proper; and in case, my son shall have no child or children living at his decease, then to such person or persons, and for such uses, estates and interests as he shall and may, by his last will and testament, direct and appoint — provided, nevertheless, that it shall be lawful for my said son, from time to time, to sell or dispose of all or any of the said negroes and other slaves, to such person or persons, and for such use, and for such prices, as he may think proper; and that he shall or may apply the proceeds of such sales to the use and maintenance of his family and education of his children, as aforesaid. And I give, devise and bequeath the rest and residue of my estate unto my said son, George Wagner, his heirs and assigns forever.”

The only alleged execution by George Wagner of the power of appointment thus lodged in him, was by his own will, in the following terms:

*“*After my just debts and funeral expenses are first paid, I do hereby will and bequeath unto my loving wife, Ann Wagner, all my real and personal estate, of whatsoever nature, as well as all and singular my effects, goods and chattels of every nature, whatsoever they be ; and I also constitute and appoint my said wife, Ann Wagner, my executrix, together with my son John ■Wagner, whom I hereby do appoint and constitute my executor, when the said John shall have arrived to the age of 21 years — and that my wife Ann Wagner, and son John, shall act under my father’s will, in trust in every respect and manner intended by their grand-father, in every respect and manner whatsoever.”

There is no doubt that the power of appointment conferred by his father’s will on George Wagner, whether a mere naked *327power, .or a power coupled with a trust, was created in terms implying a confidence in his personal discretion, and was incapable of delegation, (a) There is as little doubt that his will operates only as an attempt to delegate it.

The interests taken by George Wagner under his father’s will, are, in the main, clear of ambiguity. The residuary clause conveyed to him the whole estate except the real estate and slaves; but no part of these, nor any interest in them or either of them, passed to him under that clause.

With respect to his interests in the realty and slaves, there is little doubt that had he left no children, the terms of the will made him so absolutely the owner, that his will would have been supported as a full disposition of them.

But in the event which has happened, of his leaving children surviving him, his power over this property after his death, was restricted to an apportionment among his children. He could not, under the terms of the will, include his wife in his posthumous disposition ; that part of the will, (unlike so much as related to the rents and issues during his life time,) confining him not to his *family*but to his *children.*

In effect, he has made no appointment — and the question presented is, what is the result of his neglect?

It may be useful, in the first place, to ascertain what interest he took in the subject matter, (the realty and slaves,) he having died leaving children behind him.

The will, divested of the terms importing a power or trust, gives this property to him generally — and there is no doubt that such a bequest was sufficient to endow him with the entire legal title to the slaves. Under our own decisions, such a devise is sufficient to carry a fee, even as to the lands. Then we are to consider him vested with the legal title in both species of prop-perty, coupled, however, with a power or trust to appoint, at his discretion, among his children.

If the court can regard this power in the light of an obligatory trust, it can make no sort of difference whether the legal title of George Wagner, the trustee, be considered as having vested, upon his death, as to the land, in his heirs, and as to the slaves, in his personal representative, or to have passed under his will to his wife. In either case the successors to the title are *328volunteers, and the trust would still adhere to the property as an obligation binding in conscience.

The great principle announced in *Morice vs. the Bishop of Durham,*11 Yes. 399, would oblige the court in either case to declare that the indication of a trust necessarily negatives the idea that a beneficiary interest was intended to the trustee *;*and in obedience to another leading and indispensable principle in this jurisdiction, to control the legal title in such way that the trustee or his assigns shall make no advantage by omitting .to perform his duty.

The question then occurs, whether the power of appointment conferred upon George Wagner was a mere naked power, or a power involving a trust.

The distinction between mere powers and trusts, is said by Mr. Sugden to be marked and obvious, and he quotes the observation of Lord Ch. J. Wiimot, that “ powers are never imperative ; they leave the act to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party entrusted.” (b) This is, however, rather a description of the consequences than a definition of these two things. Indeed, it would be difficult to point out the precise distinction in abstract terms. But' there is no. insurmountable difficulty in distinguishing between them in practice.

The distinction would seem generally *to be something like*this: that a naked power is a mere authority over any subject matter, enabling the donee to control its disposition, without vesting the thing itself, or any interest in it, in him. A trust, on the other hand, is, where the thing, or an interest in it, is vested in the donee, upon the confidence that he will make a certain disposition of it.

Thus, a distinction early taken between a mere power confei-red upon an executor to sell or otherwise dispose of real estate, and a dev-ise of *the*estate itself, to him, with directions to sell, (fee., of which we have many examples mentioned by Mr. Sug-den, (c) is still recognized. The one is a mere power, the other is a power with a trust.

The incidents of these two things are more obvious than the distinction, in all instances, between them.

*329Mr. Sugden (d) infers, from the authorities, that although equity will supply the defective execution of a power in proper cases, yet it is an immutable rule, that a non-execution shall never be aided ;' nor is it a ground for relief that the party was preven-, ted by death from an intended execution.

He also lays it down, (e) that where one executes a general power of appointment in favor of a volunteer, equity will exclude the appointee, and subject the fund to the debts of the person executing the power ; but if he utterly abstains from executing his power, the court cannot compel him to do so — nor can it aifect the fund, subject to ihe power, in favor of the creditors; for that (says he,) would be against the nature of a power, which is left to the free will and election of the party to execute it or not — for which reasons equity will not say he shall execute it, ■ nor do that for him which he does not think fit to do himself. This, he continues, may seem rather a refined distinction, but it is well established; and the court cannot execute a mere power when the donee declines to do so.

But where there is a trust, the court will interfere. In *Brown vs.*Higgs, 8 Ves. 574, Lord Eldon states the principle of all the cases on this subject to be, that if the power is one which it is the duty of the party to execute, made his duty by the requisition of the will, put upon him as such by the testator, *who has ■ given him an interest extensive enough to enable him to discharge it,*he is a trustee for the exercise of his power, and without discretion whether he will exercise it or not; and the court' adopts the principle relative to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interest of those for whose benefit be is called upon to execute it.

The case of *Garfoot vs. Garfoot,*(M. 15 Car. II, 1 Gh. Ca. 35,) mentioned by Chancellor Kent, in *Osgood vs. Franklin,*(2 Johns. C. K. 21,) is an illustration of the general doctrine; although the trust in that case was inferred not from an interest vested in the person on whom the power was conferred, but' from the purpose to be subserved by its execution. It was a case in which a power was given 4to executors to sell lands after the expiration of a life estate mentioned, to raise portions for younger children. The life estate expired, and the executors *330died, without executing the power, and the younger children exhibited the bill to compel the heirs to sell. On demurrer by the heir, on the ground that the executors had but an authority, the demurrer was overruled.

Wherever there is an interest vested in the trustee of the power, sufficient to enable him to execute it, or, as it is sometimes expressed, “sufficient to feed the power,” it amounts to a trust, and will be executed. Thus, in *Osgood vs. Franklin,*before mentioned, where the question was, whether a power to sell, conferred upon several executors, remained, and might be executed by the surviving executors, upon the death of some of them, Chancellor Kent says. “Here was an interest sufficient to feed the power and keep it alive in the hands of the surviving executor. The executors were vested by the will with an absolute interest in the undivided moiety of the whole *residuary estate*on *lohich*the power was to operate, and they were directed to keep the whole of this residuary estate on interest *or rents,*for the general benefit. This authority to lease, and this interest in the'subject itself, are sufficient to exempt the power from the character of a mere naked authority to a stranger. It is not necessary,” he continues, “that the interest coupled with the power should be a *legal*interest. An equitable estate is sufficient, and is regarded in this court as the real interest;” for which the Chancellor quotes *Hearle vs. Greenbank,*3 Atk. 714.

The requisites of a trust., so far, appear to exist in this case. But still it is objected, that this must have been a mere power, and not a trust, because no specific directions were given as to the beneficiaries, nor the interest intended for them. The appointment to be made was to such of George Wagner’s children as he might select, and of such interests and estates as he might deem proper. The argument is, that he could not have been compelled to determine a matter left to his own discretion ; and that having abstained from the exercise of his power, the court cannot exercise it for him, being necessarily ignorant what preferences ought to be made among the beneficiaries.

The first observation to be made on this, is, that the testator did not intend a benefit to his son, (in the case of his having children,) beyond his own life ; and that it would be against principle to allow him to accumulate a benefit upon his own estate, or his heirs,-,by an act of negligence.

The next is that, although he was not, in terms, required to make an appointment, there is nothing better established than *?that a testamentary expression of a wish or expectation that an act should be done amounts to a testamentary direction to do it.

When the testator gave his son a power to appoint among his grand children, as he might choose, he, in effect, signified his wish that some of his grand-children should have the benefit of his property, it being indifferent to him, though possibly not indifferent to his son, which. The substance of the power, then, was to enable his son to make an inequality among persons all standing in equal favor with the testator; in plain terms, to enable him to disappoint, to some extent, persons to whom the testator would, but from motives'of deference to his son, have made an equal appointment.

The cases shew that, under such circumstances, when the power given is not executed, the court will return to the forefather, and conform the bounty to the original state of his affections.

It is true that the decisions on this subject have not been quite uniform. In *Marlborough vs. Godolphin,*2 Ves. Sr. 61, where the bequest was of money to testator’s wife, for life, and after her death, to be divided and distributed to and amongst such of his children, and in such manner and proportions,' as she, by deed, <fec., should direct and appoint, Lord Hardwicke held this to be a mere power, and not a trust for the children, in default of appointment; appearing to have drawn a distinction between the case, under the expressions actually used “amongst *such*of my children,” (fee. and what would have resulted if the words had been *“amongst*my children as A. shall appoint,” *&c.*

But in *Harding vs. Glyn,*l Atk. 469, the testator, devising certain articles to his wife, desired'her, “at or before her death, to give the same unto and amongst such of his own relations as she should think most deserving and approve of.” (f) This was held to be a trust for testator’s relations in default of the appointment ; the master of the rolls saying that the power of the wife was to apportion, and the trust was that she should do it, and her non-performance of it should not make the devise void, but the power should devolve on the court.

*Brown vs. Higgs,*(g) already mentioned, was a case much considered, having been heard twice at the rolls, again upon appeal to the Lord Chancellor, and again before the house of *332Lords, and the determination was uniformly the same. The testator empowers A. to apply the residue of certain rents “to *such*children of my nephew S. B. as the said A. shall think most deserving, and that will make the best use of it,” or to the children of another nephew, if any there were or should be. Lord Alvanly, upon a rehearing, as I have said, conceived that the fair construction was that, at all events, in default of appointment, the testator meant it to go to the children, and that the words of appointment were used only to give a power to A.to select some and exclude others, and decreed it a trust for all the children of both nephews.

I consider it settled, and upon clear principles, that in all cases where property is given to one, enabling him to execute a power in a discretionary manner, and he does not exercise his discretion or excute the power, the class of persons among whom the bounty was to be distributed, shall not be disappointed by his neglect, but shall take equally ; that the rule of all such powers is that they are trusts, to be executed; especially where a moral obligation lies at the foundation of them, and where by the neglect the trustee would, otherwise, derive a benefit to himself or his heirs.

The result of this enquiry is, that all the children of George Wagner were entitled to the realty and the slaves devised to him ; and that his widow and executor had no power or authority to lease, sell or dispose of any part of them.

Then, we come to look more particularly into the several leases made by her. I have, in effect, said that these leases were made without authority, and are not binding on the children.

It is said, however, that the lessees, who have answered, had no notice of the will of John Wagner. They have not denied notice in their answers ; and if they had, the character in which Mrs. Ann Wagner executed the leases, styling herself executrix of George, ex’or. of John, was sufficient to put them on the en-quiry, and to direct them in it.

Then, they say that, in fact, the whole family, as well as Mrs. Wagner, themselves uniformly entertained the impression that she had full authority, and that for a period of 30 years, they, although most of them adults for a great portion of the time, acquiesced in leases and other dispositions of the property made by her. The satisfactory answer to this is, that whatever may have been their acquiescence in other leases, that can only affect their interests as to those other leases. But the present leases *333have all been made within a few years, and they have a right to determine for themselves, upon better advice, when their acquiescence shall cease.

But if these children repudiate the leases, they must be content to charge the tenants only for reasonable rents for use and occupation, under the circumstances.

I hold, too, that as these premises must be sold for partition, the tenants are entitled, under the circumstances, to so much of the funds as the improvements, put'up by them before the filing of the bill, may contribute to bring, and that they are entitled to an abatement for rent, commensurate to the interests pf Mrs. Ann Wagner, acquired by purchase.

The other questions in this case, being matters of account, will be more satisfactorily decided upon the bringing in of the report on all the accounts, which are hereby referred — and I shall, therefore, reserve them here.

The parties to be at liberty to propose an order for the sale of the premises, as also an order for leave to Mr. Yeadon to pay the futrds of the different estates into court. I should make orders. now, but as some orders were passed at the June term, as I am informed, I abstain, lest in the details I might conflict with them,

The question of costs reserved.

From this decree, some of the parties claiming under the will of John Wagner appealed, on the ground that the lessees of Mrs. Wagner contracted with her at their own risk, and have no equity to call upon the devisees of John Wagner to make good their leases, and thalt all the relief they are entitled to is to come upon the estate of. Mrs. Wagner, as creditors, under the orders heretofore made for taking an account between all the parties. Others appealed, on the ground that the lessees being allowed, by the decree, the full value of their buildings, as compared with that of the land, they are entitled to no abatement of rent, or at all events they are bound to pay so much rent as the use and occupation of the land was worth.

The administrator of Ann Wagner appealed, on the ground that the power to George Wagner, under the will of his father John, not having been executed, the estate became absolute in him, and passed under his will to Mrs. Ann Wagner.

The case was argued by Bailey, Petigru, Walker, Magrath, Porter, Yeadon, McCready, Edwards, Bgleston and Macbeth.

(a)

*Ingram vs.*Ingram, 2 Atk. 88 ; *Attorney General vs.*Berryman, 2 Ves. Sr. 643.

(b)

 2 Stigd. on Pow. 173, sec. 6; 16 Law Lib: 95.

(c)

 1 Sugd. on Pow. 128-9.

(d)

 2 Sugd. on Pow. 173; 16 Law Lib. 95.

(e)

*Toilet vs. Toilet, 2*P. Wms. 489 ; 7 Ves. Jr. 499 12 lb. 13 lb. 114.

(f)

 5 Ves. Jr. 501; 8 lb. 571; 8 Ves. and B. 198.

(g)

 5 Ves. 595; 8 Ves. 561.

Curia, *per*DuNkin, Oh.

This court concur in the, view which has been taken of John Wagner’s will, and of the authority and obligation devolved by it on George Wagner.

*334We also agree with the Chancellor that the lessees under Mrs. Wagner are entitled to compensation for their improvements, to the extent allowed them by the decree.

The legal title to the premises was in George Wagner, and by his will passed to Mrs. Wagner. When the whole of his will is taken together, it is not very certain that he intended to transcend the authority vested in him by his father’s will. He expressly refers to and recognizes that instrument, and charges his executrix and executor with the trusts declared by it. Whether he had done so or not, the legal title vested in his de-visee, charged with a trust, which the children were at liberty to enforce whenever they thought proper.

The lessees dealt with a person clothed with the legal title, and their leases were valid until the equitable rights of the children were interposed. These rights were never asserted during the life time of Mrs. Wagner, and we think that, to the extent that the actual value of the premises has been enhanced by the improvements, the lessees are entitled to compensation. , The decree gives them no more.

It is said in the decree that the lessees, “are entitled to an abatement for rent, commensurate to the interests of Mrs. Ann Wagner, acquired by purchase.” This may need explanation. It had been previously declared that the tenants were chargeable “only for reasonable rents for use and occupation, under the circumstances.” This fixes the mode and measure of accountability. If the tenants have any demand or set off against Mrs. Wagner, her interest in the premises may be subjected to the satisfaction of it, but they are not entitled out of it to an abatement for rent.

It is ordered and decreed that the appeal be dismissed.

Johnson and Johnston, CC. concurred.

Harper, Ch.

I concur, except that I think the tenants were entitled to hold under their leases to the end of their respective terms, the leases being valid at law, and there being no equity to impeach them.