The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-27

| the power was intended by the testa-
tor 10 be exercised only during the life
of his wife. The power is one TO carry
on the te-tator's extensive mercantile
business ami TO sell any of his estate, Re al
or personal, except what is specifically
| devised. This Is a provision that
| would naturally be made for the beDe-
fit of the wife during the continuance
of her life estate and there was appar-
| emily no reason for extending 1t be
| yOnd that time. On the other hand
| there is manifested an intention
| that it should not extend beyond that
| time, for im mediately after her death
| all of this property is devised directly
| to each of the testator's sons and
| daughter and to his grardsons in the
proportions named, without qualifica-
| ton except as TO the share of the
| MISUNDERSTANDING clearly that the
power was not intended to continue
with reference to the other four shares.
And, since the power is given eX-
pressly with reference to every por-
| ton of this property-all five shares -
| so long a. it extends to any, and since
there is nothing in the will or codicil
requiring its continuance for longer
| period as to the share of the graudsOns
alone, we must conclude that it was
not intended to so continue. 1t was
so long as the estate was kept to-
gether, that il, during the life of the
wife, and for her benefit The testator
| did not intend that the executors
| should have power to carry on the
mercantile business and sell property
| after the SONS and daushter had be-
come absolutely entitled to their sew
eral shares ard might compel parti-
ton at any time.
70 hn
express power to sell as a mere power
and not as coupled with a trust or as
implying q trust. This seems to be
all that it amounts to. 1t is in terms
mere power and does not require
title in the executors any more than a
power to carry on business and sell
property at discretion would require
title in an agent. On the contrary,
the title to all the estate that it affects
is expressly and directly given to
those beneficially interested. See j
WINS. Elk. 9Th Ed. 725. But whether
it implied trust OF not, ii ceased, as
we have found, upon the death of the
wife.
If trust is created or implied by
other portions of the will, or codicil,
it is a general trust without power to
sell except by decree of court upon
cause shown. For n trustee has
not, as a rule, power to sell merely
by virtue of his Office. There must |
in general be an express or inn
piled grant of power in the !
instrument creating the trust aside |
from the express or implied creation !
of the trust itself. But we do not find |
that any trust except for the purposes |
of administration was created to ex- |
tend after the death of the wife, what |
ever may have been the intention |
with reference to trust prior to that |
time.
The direction in the will that the |
grandsons should not come into pos |
session until they arrived at the age |
of twenty-one years respectively does !
not imply a trust. The share of the |
grandsoDs was devised directly to and |
became vested in them III precisely ]
the same way as the other shares |
were devised TO and became vested in |
the sons and daughter, and the at |
tempt to postpone the possession of |
the erandsons' share not only does not |
imply a trust, but if this share were |
devised directly to the executors in !
trust to deliver the possession to the |
grandsoDs at the age of twenty -one, !
the provision would be void and they |
would be entitled to possess on at |
once. Gray, supra, Oh ~. The tes- |
tator apparently intended to clothe |
the executors TO some extent with the |
powers of guardians, which does not |
imply ii lie in them but, assuming |
that he used apt words to clothe them |
with such powers, they could not ex- |
tend beyond the period of minority, |
that is, under our statute, beyond the |
age of twenty years.
The first clause of the codicil is !
merely an attempt to lengthen the |
period of pOstponement mentioned in |
the will and, taken by itself, is void. |
Gray, supra.
The second clause of the codicil, if |
valid, does not require title in the |
trustees any more than in the grand |
sons, or any more than the limitations !
over in the clause of the will in which |
the premises in Cedar Rapids are de- |
vi, ed to the son William requires the |
title TO those premises to be in the |
executors during his life.
No doubt the testator, If he had so |
desired, might have created a valid |
trust for five years after the death of |
his wife for the protection OF others, If |
any, who might during that time be- |
come interested in the property, but |
he did not do so. The attempted post |
ponement was evidently intended !
only for the benefit of the grandsous. |
This is shown by the postponement |
provided for in the will, which affects |
them only, and of which the first |
clause of the cOdicil is only an extern |
sion, and by the fact that the eXecu-
tors might deliver possession to the |
grandsons at any time even within
the five years. The intention was not |
to protect others in whose favor the |
estate devised to the grandsons might |
become Invested, but apparently to
prevent the grandsons from coming !
Dna.oSSinn hpfnrA thew EOIlld. in,
the opinion of the executors, be likely |
to make a proper use of the estate.
Whether the estate or any part
thereon which has become yes ed in
the grandsons would become Invested
under the second clause of the codicil
in case of the death of either before
actually coming into posse sion is a
question which does not concern the
executors at present Tnat clause