The Opinion of the Court was delivered by
Koerner, J.*This was an action of ejectment, originally commenced in the Circuit Court of Cass county, by defendants in error against plaintiff in error, for the recovery of a quarter section of land in Cass county. By change of venue the cause was removed to Sangamon county, where a trial was had at the July term 1844, of the Sangamon Circuit Court, and a verdict was found in favor of defendants in error.
By agreement of parties, but one point is presented for the decision of this Court, involving the question, whether one Benjamin H. Gatton, administrator with the v/ill annexed of the estate of Thomas Payne, deceased, had power to convey the land in controversy, under and by virtue of the will of said Thomas Payne, and the letters of administration granted thereon by the Probate Justice.
The only error assigned is, that the Court refused to admit in evidence a deed made by said Gatton, as such administrator, to said Hall for the premises in question, which was offered to sustain title in Hall.
The following is the will under which Gatton claims a right to convey: “My will is, that my land and personal property be sold at such credit, and in such manner as is thought most advisable to my executor, for the interest of my little children, and the proceeds to be put at interest for their support and education, if the interest should prove sufficient, otherwise the principal is to be used. But the land is not to be sold until it will bring eight dollars per acre, and as they arrive at age or marry, that distribution be made of what shall remain in equal proportions, not depriving the younger children of means of education. I mean that my executor shall use some discretion in distributing, so as to retain sufficient' to educate the younger children.
“September 4, 1835. Thomas Payne, [seal.]”
“Attest,
A. S. West,
Thos. S. Howard,
Ephraim Mozley.”
The counsel for the plaintiff in error has referred to numerous authorities for the purpose of satisfying this Court, that the power conferred in this will was not a mere naked power, but one coupled with an interest or trust, and, therefore, capable of surviving. I have, however, not been able to perceive, that the question as to the nature of this power is necessarily involved in the decision of this cause. There seems to be no doubt, that the executor, if one had been appointed in this will, would have had power to sell the land in question, provided he had conformed with its provisions. The true and only question is, has the administrator with the will annexed, appointed by the Probate Justice, there being a failure of an executor, succeeded to all the rights and duties which would have devolved upon the executor.
I understand the plaintiff in error to assume the position, that the administrator with the will annexed, has succeeded to all-the rights and duties of the executor, without regard to the nature of such rights and duties, and whether they concern real or personal estate, and that he can exercise them both by virtue of the common law and our statute. In order to sustain the first branch of this position, he relies on the following authorities: 2 Black. Com. 503, 504; Toller on Executors, pages 92 et passim; Farewell v. Jacobs’ Adm’r, 4 Mass. 634.
I have examined these authorities with some care, but do not think that they affirm the doctrine advanced. It is true that they all concur in saying, that the duties and powers of such an administrator .differ but little from those of an executor, and that the former is equally bound to act according to the provisions of the will. But in the passages referred to in Blackstone and Toller, wills and testaments are considered merely in regard to personalty, and are treated in their original common law sense. Both writers speak of these administrators in connection with the statute of 21 Henry 8, providing for their appointment in certain cases, a statute passed a number of years before lands were made directly devisable by will.
Their observations, then, when fairly understood, cannot be so extended as to apply to realty, particularly when such a construction runs counter to the whole doctrine in regard to wills and devises, as firmly established in the common law.
Before the passage of the Statute of Wills, (32 Henry 8,) the office of executor and administrator was well known and defined. It related to personal property only. After the introduction of conveyance by will, executors were frequently appointed by the testator to effect the conveyance; but they were not necessarily, and by virtue of their office, the agents for such purpose. As far as they were charged with the alienation of lands, they acted by virtue of the power given in the will, a common law power, or as donees of the grant, and not as executors. Other persons than the executors might be charged with the execution of this power, and often were so charged, and persons having been appointed executors, with power to sell land, could sell without probate of the will, and without taking out letters testamentary. This is the unquestionable law, and from it the deduction is irresistible, that the office of executor and trustee to sell land is not necessarily blended, and that executors may act in a double capacity; first, as executors by virtue of their office, and second, as agents, or trustees under a warrant- of attorney. If they act in the latter capacity, the trust imposed upon them is of a special and confidential character, and cannot he delegated.
The case of Farewell v. Jacobs’ Adm’r, 4 Mass. 634, so far from militating against the views just expressed, appears to give them additional strength. It was there held, that an administrator de bonis non, cum testamento annexo, was liable for the non-execution of a duty originally devolved upon the executor, who had given up his office. But they make this important qualification; “the duties of the executor resulting from the nature of the office, and charged upon him as executor, devolve upon an administrator de bonis non, cum testamento annexo, where the authority is not necessarily connected with a personal trust or confidence reposed in him by the testator.” Here we find at once the true line of demarcation between the executor and the trustee. Where the trust commences, there the office of the executor ends, and a fortiori, the office of the administrator, who has taken his place.
The counsel for the plaintiff in error, anticipating, perhaps, this view of the case, has sought to avoid its effect by an ingenious course of reasoning. He argued that, inasmuch as in this case the testator has not named his executor, and as he is presumed to know the law of the land, by which, in such a ease the Probate Justice appoints an administrator to execute the will, it was necessarily this person so to be appointed whom he had in his mind’s eye, and the power conferred in the will, being one coupled with a trust, capable of surviving, the administrator with the will annexed must be considered as having received his commission from the testator himself. I cannot assent to this proposition. Trust is, in its nature, of a relative character. It cannot exist unless it has a repository. The person bestowing it must know him on whom it is bestowed. It would be refining, indeed, to contend that the testator meant to place his confidence in some indefinite creature of the law, springing into existence years perhaps after he himself had ceased to exist.
It may be objected, that Courts of Equity will frequently appoint trustees where a trust is given, and no trustee appointed. This is true, hut then these Courts do only act when called upon by the cestui que trust; they act according to well established principles of law, with full notice to all parties interested. They are able to protect the rights of the cestui que trust in the most ample manner, and are emphati-. cally the guardians of infants, and cestui que trust. Surely the same cannot be said of the Probate Justices, who, in most cases, act but ministerially, and whose proceedings are generally ex parte, and strictly regulated by statutory provisions.
In this view of the case, the Court are fully sustained by decisions made in some of our sister States. This very question was decided in Ohio, Wells v. Cowper, 1 Ohio Cond. R. 278, upon distinctions drawn from the common law. The devisor, having land in Ohio, but himself residing in Virginia where a statute exists authorizing in terms an administrator with the will annexed to execute a power of selling land, given by the will to an executor, made a will constituting J. Baker his executor, with full power to dispose of all his lands in Ohio and Virginia. Baker refused to act, and the administrator with the will annexed having, as such, agreed to sell land in Ohio, a bill was filed by the vendee to compel a specific performance. The Court dismissed the bill, deciding that the administrator could not convey, on the ground that the power of the executor could not be thus executed by one whom the testator never had mentioned, nor could have contemplated as a depository of such powers.
This case was cited with great approbation by Justice Cowen, in delivering the opinion in Conklin v. Edgerton’s Administrator, 21 Wend. 423, a case to which I will have occasion to refer more fully hereafter, and the principles laid down in the Ohio decision were fully adopted by the Supreme Court of New York. The distinction between an executor as such, and as trustee is also recognised, and ably discussed by Chief Justice Savage in Judson v. Gibbons, 5 Wend. 224. I confine myself to" a bare reference to these casesj which are very full, and very long; even extracts would extend this opinion to an undesirable length.
Having disposed of this portion of thé cause, I.will examine the question with reference to our own statute, which, it is insisted, confers the power to sell if it was given to the executor, or the administrator with the will annexed. Before I do this, however, I will advert to a few well known maxims • of law.
1. That a statute changing the course of the common law in derogation of it must be strictly construed; and
2. That if it appears doubtful from the phraseology used, whether the legislature intended to make such a change, the presumption is, that such was not their intent.
Upon a careful perusal of the Statute of Wills, R. L. 611, I feel convinced that our legislature did not mean to obliterate the well established boundaries between an executor as such, and a trustee; and a trustee appointed by will, and a stranger, who administers with the will annexed. It is not contended that such an administrator has the power to sell land, when it was originally given to the executor in the will, conferred upon him in terms by our statutes; but the plaintiff in error insists, that it must be implied from sections twenty seven and thirty seven, in our Statute of Wills. The twenty seventh section provides, that the administrator with the will annexed shall give bond in a sum double the amount of the estate, and the conditional part of the bond contains the clause, that the administrator cum testamento annexo will make an inventory of the goods and chattels, lands and tenements, and will well and truly fulfil the duties enjoined upon him in and by the will. The thirty seventh section provides, that all estates, both real and personal, that are not devised or bequeathed in the last will and testament of any person, shall be distributed in the same manner as the estate of an intestate; but in all such cases, the executor or administrator with the will annexed shall have the privilege of administering On the same. But it seems to me that the passages can be easily reconciled with the tenor and scope of the whole statute. Every administrator is directed by the seventy seventh section to take an inventory of the lands and tenements of the intestate, but will it be contended that therefore an ordinary administrator has acquired power over the land? Certainly not. In certain contingencies pointed out by the statute, it may become necessary to convert, under the direction of the Court, the realty into personal assets and it is for this reason, that all administrators must keep an eye upon the real estate.
The word “estate” used in the twenty seventh section may well be limited, with reference to the well known powers of the administrator with the will annexed and the main subject matter of the Statute of Wills, to mean personal estate. Besides, the word “estate” is frequently made use •of throughout the statute, where manifestly personal estate is merely intended; for instance in the thirty seventh section, the undertaking of the administrator with the will annexed, in his bond to execute the duties enjoined on him by the will, must be understood as referring to his well known common law duties devolving upon him as the successor of the executor, and not as the successor of an executor, as far as the latter was made the confidential trustee of the testator. The word “administrator” in the thirty seventh section explains itself sufficiently, if its technical meaning be adhered to.
There are, however, many provisions in the Statute of Wills, which completely refute the view taken by the plaintiff in error. The twenty second section prescribes the oath of office to be taken by the administrator with the will annexed, which surely ought to be co-extensive in its obligation with the duties assumed by him. It is in the following form: elI do solemnly swear that this writing contains the true last will, &c., and that I will well and truly execute the same by paying first the debts and then the legacies mentioned therein, as far as the testator’s goods and chattels will thereunto extend and the law charge me.” The sixty second section gives the form of the letters of administration, which is the commission under which administrators have to act, and in these letters the personal estate alone is mentioned. The same section provides, that the same form shall be observed in cases where letters are granted to the administrator with the will annexed.
The eighty ninth section expressly provides, that sales made under a will, when such power shall be given therein, made in the manner and by the person appointed in such will, shall be good and valid, which negatives the idea that sales by other persons than those appointed are good. This last section seems to me to be conclusive. It could not have been the intention of the legislature to interfere so materially with the rights of the citizen as to substitute, in the manner contended for, a perfect stranger in the place of one specially selected as the confidential friend and trustee by a dying man, when such friend, for some reason or another, was prevented from complying with the request of the deceased. It might happen that the principal creditor of the testator, whc¡, under the statute, is entitled to apply for administration, on failure of widow or next of kin to administer, would fill the place of the contemplated friend.
. The case now presented to the decision of the Court illustrates the evil consequences which might flow from such a law, if it were engrafted on our statute book. Payne, as it was stated in the argument, being at the point of death, makes his will in great haste, expressing the greatest solicitude for his little children, and omits to name an executor. It seems he left no wife, and his children being: of tender age, are incapable of administering. Now his principal creditor may have stepped in and would stand charged with the management and sale of the land, for the purpose of maintaining and educating the little children of the deceased, if the law were as insisted on by the plaintiff, in error.
The case of Conklin v. Edgerton's Adm'r, 21 Wend. 423, before referred to, turned in part on the construction given to the Statute of Wills in New York, and is indeed a very strong one in favor of the view just taken. The New York statute relating to administrators with the will annexed, is as follows: “In all cases where letters of administration with the will annexed shall be granted, the will of the deceased shall be observed and performed, and the administrator with such will annexed shall have the rights and powers, and be subjected to the same duties as if they had been named executors in such will.”
This is strong language, and yet the Supreme Court of that State has decided, that a power to an executor to sell and dispose of real estate granted by a will, and to divide proceeds, cannot be executed by an administrator with the will annexed.
It is impossible to perceive anything in the opinion of Justice Co wen, exempting the case now before the Court from its operation. The passages alluded to by counsel, as placing this case beyond the reach of this decision, refer to joint appointments of two or more persons, where, when a trust or an interest is coupled with their power, and one diesj the suvivor will be entitled by implication to execute the trusts, if such can be done consistently with the language of the whole will, or to cases where land is directed to be sold without saying by whom, and where the funds being distributable by the executor appointed in the will, the latter is said to have the power to sell, by necessary implication.
These cases differ widely from the one at bar. The administrator is the successor of the executor, and cannot be called, in legal parlance at least, his survivor. Survivorship, in its legal sense, implies the pre-existence of a joint right or interest, and joint too in point of time. Legally speaking, a successor can never be a survivor, or a survivor a successor. The want of this proper distinction is apt to create considerable confusion.
The Court is satisfied, that an administrator with the will annexed, has no power without the aid of Courts to sell lands, devised to an executor to be sold, or directed to be sold by an executor, when such executor has died, refused to act, or is incapable to act, neither at common-law nor by our statute, and is of opinion, that the deed of Gatton, administrator, cum testamento annexo, as conveying no estate to Hall, was properly excluded on the trial. There is no error.
Judgment must be affirmed with costs. The cause will be remanded without prejudice to the plaintiff in error; to proceed further under our statute.
Lockwood, 3., did not sit in this case.