The opinion of the court was delivered by
Mr. Justioe Kershaw.On April 6, 1865, William Long, the elder, duly executed his last will and testament, whereby he appointed the defendant, Mary Winn (then Mary Long), James B. Steedman, and his son, William Long, executors. Soon thereafter, and in the same year, he died, and his will was admitted to probate. Mary Long alone qualified as executrix thereof.
The will, among other things, contained the following provision : “It is my will and desire, and I do hereby direct the whole” (that is, the residue of his estate) “shall be appraised and divided by my executors, hereinafter named, into two equal shares or portions; one of which, and that one which my said wife shall choose or select, I give, devise, and bequeath to my said wife, to have, use, and possess, during the term of her natural life or widowhood, and from and after her death I give, devise, and bequeath the same to my children and their representatives, subject to the terms and conditions hereinafter prescribed.” The other half he directed to be divided into nine equal parts, and gave one part to each of his children by name, then alive, and the other to be equally divided between the two children of a deceased son, to be held for life, with remainders over. The will also provides that “in estimating and appraising the value of my estate, I direct that a specie basis shall be used, or such value put upon my property as it would have borne in the year of our Lord one thousand eight hundred and sixty.”
The executrix, in the language of the referee’s report, “appears' to have acted with the most exemplary good faith, and to have' been actuated by a desire to do every one of the legatees equal and exact justice. No step, however unimportant, appears to *597have been taken without the consent and approval of all the parties in interest who were of age to consent, or without the advice of skilful and able counsel.” In December, 1865, the executrix called in four neighbors and had an inventory and appraisement of the estate made and filed in the office of the ordinary. No attempt was made then to divide the property, but by agreement of the adult legatees it was kept together and planted for the common benefit. In August, 1867, the legatees agreed in writing “to divide the estate” according to the will. This agreement was signed by all the adult legatees, and the instrument proceeded: “Owing to the unsettled condition of the country and the probability of confiscation, we agree to rent that portion of the land belonging to the children and divide the proceeds at the end of each year,” &c.
On March 21, 1868, the property was appraised for the purpose of making a partition as directed by the will, the appraisers having been appointed by the ordinary, and acting under his warrant. They were three of the former appraisers. On the same day five of the adult legatees signed a written guaranty, “faithfully, honestly, pecuniarily, and everything to a cent of property, to support the executors of the above deceased, in any difficulty in land that she may become engaged in hereafter concerning the estate. ' This, in consideration that they do not charge any commission on the estate.” Among the signers of this guaranty was Janie E. Smith, the plaintiff, and the cestui que trust of Asa Smith, plaintiff. All the legatees who were of age had full notice of these proceedings and consented to and approved of them and received portions under the partition made, including Mrs. Jane Smith and Asa Smith, her trustee.
The referee and the Circuit Judge have concurred in the facts found, and this court can perceive nothing in the case that would justify any interference with their conclusions. For the purposes of this opinion, they need not be further recited in this place.
The principal question of law raised by the appeal concerns the power of the executrix to make the appraisement and partition of the estate, now sought to be set aside. ITa.d she authority alone to execute the power conferred upon the executors to appraise and divide the estate? If it.was a mere naked authority *598given to several persons, all must act. 4 Kent, 325; Mallet v. Smith, 6 Rich. Eq., 22, 60 A. D., 107. So if it indicates a personal confidence in the persons named, and the word executors is merely a designation or title. Mallet v. Smith. The ground of the power being personal confidence, it is prima facie limited to the persons named, and will not survive without express words. Cole v. Wade, 16 Ves., 27. If, however, the power be conferred upon executors as such, without naming those holding that office, and there is nothing to show that it is a personal trust, the execution of the power appertains to the office of executor, and may be performed by the person holding the position, if the execution of the power be necessary in order to carry into effect the will of the testator. Jackson v. Ferris, 15 Johns., 347 ; DeSaussure v. Lyons, 9 S. C., 496, 501; Forbes v. Peacock, 11 Mees. & W., 636 ; Sugden on Powers, 139.
If it be a power coupled with a trust, it survives and may be executed by one executor where the others die or renounce the office. The test of such a power being coupled with a trust, is that a third party has such an interest as will enable him to call on the executors to execute the trust. Jackson v. Given, 16 Johns., 168 ; Franklin v. Osgood, 14 Johns., 527, 553 ; Caines Cases, 15 ; Taylor v. Benham, 5 How., 266; Peter v. Beverly, 10 Peters, 532. It cannot be doubted that the power in this case was one coupled with a. trust and to be executed by the executors virtute officii, and necessary to be put into exercise in order to execute the provisions of the will. Hence it was properly executed by the only person who qualified as executor.
As to the manner in which the power was executed in 1868, we find nothing to question. The provisions of the will were carried out in the most reasonable and discreet manner. All the adult parties approved of it and participated in its results. They have acquiesced in it for a number of years and could not now complain if any irregularities in the proceedings had been shown to exist. The plaintiffs, especially, are estopped to deny the validity of the transaction by their conduct in connection with it.
Nothing was decided by the Circuit Court in regard to the claim for commissions by the executrix. It was made the subject of a reference in order to ascertain the facts in regard to it. *599It is not necessary to say anything in regard to the other matters discussed on the app'eal. It is sufficient to say that we concur upon those points with the court below for the reasons appearing in the Circuit decree and the excellent report of the referee.
The judgment of the court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to the Circuit Court for such further proceedings as may be necessary to carry out the judgment of that court.