PIPPIN
v.
BARKER et ux.
No. 166.
Supreme Court of North Carolina.
May 2, 1951.*831 Charlton E. Huntley and L. B. Prince, Hendersonville, for plaintiff, appellee.
O. B. Crowell, Hendersonville, for defendant, appellant.
JOHNSON, Justice.
Decision here turns on whether the discretionary power of sale vested in D. Sams expired at his death, or survived and was transmitted to his executors. If the power expired, plaintiff's title is good and she prevails; if the power survives, her title is thereby encumbered and she may not prevail. The court below ruled with the plaintiff,that the power expired,and we approve.
The controlling principle is stated in 41 Am.Jur., Powers, Sec. 31, p. 826: "It may be said to be the general rule that where a power is coupled with a personal confidence or discretion the donee cannot delegate its execution to another. This rule has been applied to powers, such as powers of sale, given to an agent, executor, or trustee. Where, however, no discretion is involved, the power may be delegated, * * *"
The decisions of this Court are in harmony with the foregoing rule. Haslen v. Kean's Heirs, 4 N.C. 700, pages 715 and 717; Young v. Young, 97 N.C. 132, 2 S.E. 78; Welch v. Wachovia Bank & Trust Co., 226 N.C. 357, 38 S.E.2d 197. The leading text-writers also are in accord: Thompson on Real Property, Permanent Ed., Vol. 4, Sections 2281 and 2289, pp. 825 and 837; Tiffany, Law of Real Property, 3d. Ed., Vol. 3, Sec. 693, p. 35 et seq.
In Welch v. Wachovia Bank & Trust Co., supra, 226 N.C. 357, 38 S.E.2d 197, 202, Winborne, J., speaking for the Court, said: "And it is a general rule of law that purely personal and discretionary powers of an executor or trustee cannot be exercised by a substitute or successor, nor can a court appoint another in the event of the death, incompetency, or other failure of the designated person."
The deed under which the plaintiff claims title conferred upon the trustee, D. Sams, the power to sell the property at any time during plaintiff's lifetime. However, the language of the paragraph creating the power, by necessary implication if not by express provision, seems to limit the exercise of the power to the sole discretion *832 of the trustee, D. Sams: twice the reference is to "the trustee herein named," with what appears to be an express limitation on its exercise to "the discretion of the trustee named herein." Here, the power to sell seems to have been conferred under special personal confidence reposed in D. Sams, coupled with a clear intent on the part of the grantor that the power should be exercised solely in the discretion of D. Sams. This being so, the power, not having been exercised by D. Sams during his lifetime, was extinguished by his death. Thompson on Real Property, Permanent Ed., Vol. 4, Sec. 2304, p. 859; Tiffany, Law of Real Property, 3d. Ed., Vol. 3, Sec. 707, top p. 79; Welch v. Wachovia Bank & Trust Co., supra, 226 N.C. 357, 38 S.E.2d 197.
With the discretionary power of sale thus eliminated from the deed, there remains for our further interpretation nothing more than a regular form deed made to "D. Sams, Trustee for Emmie C. Sams" (now the plaintiff). This deed prescribes no duties of any kind to be performed by the trustee. He is made a depositary only of title. Where this is the case, the trust is passive, Akin v. First National Bank, 227 N.C. 453, 42 S.E.2d 518, as distinguished from active, Fisher v. Fisher, 218 N.C. 42, 9 S.E.2d 493. Therefore, by operation of our Statute of Uses, G.S. § 41-7, the legal, as well as the equitable, estate in the land passed to and became vested solely in the plaintiff. Patrick v. Beatty, 202 N.C. 454, 163 S.E. 572; Deal v. Wachovia Bank & Trust Co., 218 N.C. 483, 11 S.E.2d 464.
It is not necessary for us to discuss the question of when the Statute of Uses executed the use in this particular case, that is, (1) whether execution occurred when the deed was made, thus creating at that time a defeasible fee, subject to be defeated by the exercise of the discretionary power of sale or made absolute by the extinguishment of the power of sale, Henderson v. Western Carolina Power Co., 200 N.C. 443, at page 446, 157 S.E. 425, 80 A.L.R. 497, or (2) whether the merger of the legal and equitable estates was delayed until the power of sale expired with the death of D. Sams. This question being moot, we refrain from discussing it.
The judgment below is affirmed.