I concur in the opinion of Mr. Justice Gary. The will of Annie E. Rice is very short and general in its terms. Legacies of $10,000 each are given to certain cousins, and all of the remainder of the property is devised and bequeathed to Spencer M. Rice, Senior, and other relatives named. In immediate connection with the residuary clause the power of sale is given in this broad and unqualified language: "I give my personal representatives full power to sell all my real estate wheresoever situated and to make deeds to same."
The executors having advertised for sale certain factory stock under an ex parte order of the probate court and several tracts of land under the power contained in the will, the plaintiffs as devisees and legatees brought this action to enjoin the sale on these grounds: First, because the personal property of the estate is sufficient to pay all debts and legacies; second, because the real estate can be divided in kind; and third, because under the original will they would be entitled to fifteen-twenty-fifths of the entire residuary estate, whereas if a contested codicil of the will be adjudged of force, they would take only about nine-twenty-fifths, and that until the contest as to the codicil is *Page 347 decided they are not in a position to bid intelligently at the proposed sale of the real estate. The executors in their answer allege in effect that the debts and legacies amount to $90,000, that though the personal estate was appraised at about $400,000, they have not money in hand to pay the debts and legacies, and that it is expedient to sell the property advertised at this time. The application for injunction was heard on the complaint and answer. The question to be decided on appeal is whether it appears prima facie from the pleadings that the plaintiffs are entitled to have the sale enjoined on the grounds above set out.
In the consideration of this question it will not be necessary to distinguish between land and factory stock, because the statute makes factory stock real estate. It is true the executors are preparing to sell the factory stock under anex parte order of the probate court as if it were personal property, but that fact is not material on the question of enjoining the disposition of the factory stock, for as real estate the factory stock would fall under the power of sale conferred by the will.
The personal estate is very large and there cannot be the least doubt that the testatrix well knew that the sale of the real estate would not be necessary to pay the debts and legacies. Looking, then, at the condition of the estate and the surroundings of the testatrix when the will was made, and at the death of the testatrix, it seems clear that she did not mean to limit the power of sale so that it could be exercised only when from deficiency of personal assets the necessity should arise for the sale of the land to raise funds to pay debts and legacies, for there was no reason to apprehend such a contingency.
Obviously, the fact that the land and factory stock could be divided in kind, or the fact that the plaintiffs, who are entitled to only part of the residuary estate, would be in a better position to bid on the property after their exact shares have been ascertained, should not deprive the executors *Page 348 of the discretion to sell conferred by the will. The testatrix did not see fit to place such conditions on the exercise of the power of sale, and the Court cannot add them to the will.
The will means that the executors shall have the power of sale of real estate whenever in the exercise of a fair and honest judgment they reach the conclusion that the interests of the estate will be promoted by such sale. The objections to the sale urged by the plaintiffs should be taken into account by the executors, but they are by no means conclusive, for there are other considerations which the executors are bound to regard in exercising their discretion as to the wisdom of selling under the power. General trade conditions, crop prospects, the general advance or decline in prosperity of the country at large or of the particular locality, the general state of the cotton manufacturing industry or of the particular mill in which the stock is held — these and perhaps many other things are to be considered by the executors in deciding whether the property should be sold. The power to consider these things and to act upon an honest conclusion that it would be best to sell was entrusted to the executors by the testator, and it cannot be assumed that the executors have not considered them and come to an honest conclusion. Hence I can see no ground for the Court to deprive them of the power, and thus substitute for the discretion of the executors, the Court's own conceptions. The hand of the executors may be arrested only when they intend to sell in breach of their trust, such intention being shown by evidence of actual corrupt design, or by evidence leading to the inference that a sale would be so injudicious that the executors could not have exercised an honest judgment in arriving at the intention to sell, or they would have come to a different conclusion.
It makes no difference that by the terms of the will the devisees took the legal title to the property, because the devise was subject to the power conferred on the trustees *Page 349 to sell. Ware v. Murph, Rice. 55; nor that the opinion of the Court on the wisdom of selling might differ from that of the executors. Anderson v. Butler, 31 S.C. 183,9 S.E. 797, 5 L.R.A. 166n.
The conclusion expressed above with respect to the power conferred on the executors seems to me to be nothing more than the inevitable result of giving effect to the plainly expressed will of the testatrix; and it is supported by unbroken authority in this State. Reeves v. Tappan, 21 S.C. 1;Jennings v. Teague, 14 S.C. 229; Anderson v. Butler,31 S.C. 183, 9 S.E. 797, 5 L.R.A. 166n; Reeves v. Brayton,36 S.C. 384, 15 S.E. 658; Dick v. Harby, 48 S.C. 516,26 S.E. 900; Greer v. McBeth, 12 Rich. Eq., 254;Huger v. Huger, 9 Rich. Eq. 217. Counsel for the plaintiffs endeavor to distinguish some of the cases, because the wills under consideration contained such expressions as that the power of sale was to be exercised to carry out the provisions of the will. But the point is too fine, for every power of sale conferred by a will has attached to it by law as a condition of its exercise that it shall be used only in the discharge of the testamentary trust imposed by the will. Adopting the language of the Court in Reeves v. Tappan, supra: "It was a power coupled with a trust, the trust being the executorship, and it was conferred upon the office of executor so as to enable the party filling that office, whoever he might be, to properly discharge its functions and duties, * * *"
Authorities elsewhere are to the same effect. "Where the power of sale is unrestricted or is given for any purpose the donee may deem advisable it may be exercised in the discretion of the donee." 31 Cyc. 1081; Perry on Trusts, Sec. 511; Hatt v. Rich (N.J.), 45 A. 969; Busch v. Rapp (Ill.), 63 S.W. 479; Bunner v. Storm (N.Y.), 1 Sandf. Ch. 357; Matthews v. Capshaw (Tenn.), 97 Am. St. 854;Randolph v. Birmingham Land Co., 53 Am. St. 64,104 Ala. 355. *Page 350