Cherry v. Greene , 115 Ill. 591 ( 1886 )

Mr. Justice Magruder

delivered the opinion of the Court:

In this ease a bill was filed by the appellees, against the appellant, to enforce the specific performance of a contract for the sale of five acres of land, and a decree entered granting the prayer of the bill. This decree was affirmed by the Appellate Court, from which the case is brought by appeal to this court.

The defendant below, appellant here, refused to carry out her contract of purchase, on the ground that Crapo and Clifford, trustees, (two of the appellees here and two of the complainants,) who filed the bill below, and who held the title to one-sixth of the premises in question, as trustees, had no.power to sell and convey to her the said one-sixth, under the following instrument, to-wit:

“Know all men by these presents, that I, Robert B. Greene, of New Bedford, county of Bristol, Commonwealth of Massachusetts, in consideration of one dollar and other valuable considerations, hereby give^ grant, bargain, sell and convey to William W. Crapo and Charles W. Clifford, of said New Bedford, all my property and estate, real and personal, of every name and nature, and wherever situated, including herein all my right, title and interest in and to the property and estate of my beloved father, David R. Greene, late of New Bedford, aforesaid, to have and to hold the said property and estate unto "them, the said Crapo and the said Clifford, and the survivor of them, their heirs and assigns, forever, but strictly in trust, to the following uses and purposes, to-wit:

“First—To pay all my just debts and the expenses of this trust.

“Second—To devote so much of the principal or income thereof as may be necessary for the use and support of myself and my family, and, as to any portion of said fund or its income so expended, the receipt of myself or my wife shall be a sufficient discharge to my said trustees.

“Third—In case of my death, if my heirs at law shall in writing so request, said trust shall determine, and said fund shall be paid over to my wife and children in the proportion to which they would be entitled as my heirs at law, and in default of said request to devote so much of the principal or income of said fund as may be necessary for the use and support of my wife and children.

“Fourth—Upon the death of my wife, if she survives me, and upon the death of each of my children who shall survive me, if this trust has not previously terminated, to pay over the proportion of said fund to which said wife or child would have been entitled in case of a division of said fund at the death of my said wife or child, to such person or persons as my said wife or child shall by will appoint.

“Fifth—If, after the death of myself, my wife and my children, there shall remain any portion of said fund in the hands of my said trustees othérwise unprovided for by this instrument, to pay over the same to such person or persons as my wife shall direct.

“And I, Mary P. B. Greene, wife of said Bobert B. Greene, join in this deed in token of my release of all right to dower and homestead in the aforegranted premises.

“In witness whereof we have hereunto set our hands and seals, this eighth day of July A. D. 1879.

Bobt. B. Greene, (L. S.)

Mary P. B. Greene. (L. S.) ”

The question is, whether the trustees under the foregoing deed have the power to sell and convey the premises in question. The deed of trust from Bobert B. Greene and wife, vested the legal title to the five acres in the trustees. The deed is, in part, an assignment in trust to pay debts. The first clause directs the trustees “to pay all my just debts, ” etc. Such an assignment necessarily implies a power of sale, though none is given in words. (Perry on Trusts, sec. 766.) No particular form, of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he can not perform without a sale, will necessarily create a power of sale in the trustee. (Idem.) The second clause of the deed clothes the trustees with large dis-. cretionary powers. (Russell v. Grinnell, 105 Mass. 425.) They are authorized “to devote so much of the principal or income thereof as may be necessary for the use and support of” the grantor and his family. It might become necessary to devote the whole of the principal to such use and support, and this would necessitate a sale of the realty. (West v. Fitz, 109 Ill. 425.) Again, the third clause of the deed directs, that in certain contingencies the fund therein named “shall be paid over” by the trustees to the wife and children of the grantor. Such a direction to trustees to “pay over” has been held to import and confer the power to sell. Going v. Emery, 16 Pick. 112; Purdie v. Whiting, 20 Pick. 25.

We are of opinion, therefore, that Crapo and Clifford, the trustees named in’the above recited instrument, are vested with power to sell the premises in question, nor will a purchaser from them be under obligation to see to the application of the purchase money. Where, as here, the trust is to pay debts generally, and apply the balance to the support of the grantor’s family, the purchaser is released from such obligation. Perry on Trusts, sec. 795; Hill on Trustees, page 342.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

The record in this case was originally assigned to Justice Dickey. No opinion having been written by him in his lifetime, the record was re-assigned in November, 1885.