
    
      Jane Mallet vs. J. Bolton Smith, Executor, and others.
    
    Testator, by his -will, made certain provisions for some of his slaves, which were void under the Act of 1841, (11 Stat. 154.) He bequeathed to his sister J. M., $2,000 ; made her one of his residuary legatees; and then provided as follows: “ Should any of my legatees, under this my will, complain, or express any dissatisfaction with any disposition of my estate herein made, X hereby direct and empower my executors, -in their discretion, to revoke any and all legacies such complaining legatee or legatees might have been entitled to, and to dispose of the same between my other legatees, as to my executors may seem just and proper.” He appointed three executors, two of whom renounced, and one qualified. J. M. filed her bill, calling in question the validity of the provisions made for the slaves; and thereupon the acting executor, alone, executed a deed revoking the legacies to J. M., and assigning them, in certain proportions, to the other legatees : Held, that the power could not be exercised by the acting executor alone, the other two, who were still living, not joining with him.
    A condition that a legatee shall not dispute the will, when to be regarded as in terrorem merely, and when not, considered.
    Such a condition subsequent is void, whether there be a devise over or not, as trenching on the “liberty of the law,” and violating public policy. Per Waudlaw, Ch. i Johnson, Ch., concurring.
    At the common law, a joint power altogether independent of the office of executor, conferred by the will upon several executors,, must be executed by them all, even though some have renounced.
    Where a legatee seeks to set aside a provision in the will for slaves, as void under the Act of-1841; he is not bound to elect, or make compensation to the disappointed legatees.
    
      Before Duwkin, Ch., fit York, June, 1853.
    A full statement of the facts of this case appears, in the circuit decree, which is as follows :
    Dunkiw,' Ch. William Racket, late of Yorkville, departed this life in October, 1850, leaving a last will and testament, duly executed and bearing date, 16th October, 1847. Of this will, Robert G. McCaw, J. Bolton Smith and James R. Bratton, were appointed executors, but the defendant alone has qualified thereon. The testator had been engaged in merchandise, and died possessed of a very considerable estate, consisting of lands, slaves and other personalty.. The fourth clause of his will is as follows : “ I will, bequeath and divise unto my said brother, Hugh Racket, if alive at my death, my negroes, Alsey, Mary, and her daughter Louisa, and Dick, in special charge and confidence, that as soon as may be practicable after my de. cease, he do erect a comfortable house for them to live in, upon the Chambers tract of land, devised in the second clause of this my will; and that the said Hugh Hacket permit Alsey, Mary; and her daughter and Dick, there to reside in the enjoyment of all the rents and profits of said last mentioned tract, without any person requiring or exacting any service or labor from either the said Alsey, Mary or Louisa, and that they be supported and maintained on the said tract of land during their several lives, out of the interest of the sum of one ■ thousand dollars hereby set apart to the said Hugh Hacket for that purpose, and hire of boy Dick to be applied to their common support.”
    By the tenth clause of testator’s will, he gives to the complainant by the description of “my sister Jenny Mallet,” two thousand dollars — and by the fourteenth clause, he declares it to be his will, “ if I am possessed of any thing not included in the above, and not hereinbefore disposed of, that my executors divide the same, together with any legacy that may fall back) equally between my brother Hugh Hacket and my sister Jane Mallet, share and share alike.”
    “ Fifteenth. Should any of the legatees, under this my will} complain, or express any dissatisfaction with any disposition of my estate herein made, 1 hereby direct and empower my executors in their discretion to revoke any and all legacies such complaining legatee or legatees might have been entitled to, and to dispose of the same between my other legatees as to my executors may seem just and proper.”
    The next of kin of the testator are his brother Hugh Hacket and his sister Jane (the complainant.) He had devised the bulk of his real estate in trust for his brother, to whom he had also bequeathed some thirteen slaves specifically.
    Of the slaves included in the fourth clause, Alsey, Mary and Louisa, constituted one family. Alsey is sixty-five or seventy years of age; her daughter Mary forty-five or fifty years, and Louisa, the child of Mary, and reputed child of testator, is a bright mulatto girl.
    
      On the part of the complainant, it is submitted that the provisions of the will are obnoxious to the Act of 1841,  and such is the judgment of this Court. This was faintly resisted on the part of the trustee, Hugh Hacket, who submitted, however, that if the Court should determine in conformity with the prayer of the plaintiff, that then he might be permitted to account to her for one moity of the value of the slaves, Alsey, Mary and Louisa, without having them subjected to a sale; and as the Act declares that the trustee shall deliver up the .slaves, or account for their value, this may be permitted, and provision therefor will be made in the decretal order. The legacy of Dick and of the thousand dollars is simply void, and passes under the residuary clause.
    But it is insisted on the part of the defendant, that the complainant has forfeited her legacy of two thousand dollars, as well as her interest in the residue, by calling in question the validity of the provisions made in the fourth clause. The general proposition on this subject was established as early as Powell vs. Morgan, 2 Yern. 91. That was a legacy upon condition that the legatee did not disturb or interrupt .the will of the testatrix. The validity of the will was, however, unsuccessfully contested by the legatee. It was held that this was no forfeiture of the legacy, as there was probabilis causa litigandi, and such is now the well settled doctrine, to wit: that such condition is considered in terrorem merely, and does not operate a forfeiture of the legacy. But where there is not simply a declaration of forfeiture, but a valid bequest to a third person in case of breach of the condition, then if the legatee controvert the will, his interest will cease and vest in the other legatee.
    The exception is discussed by Sir William Grant in Lloyd vs. Branton, 3 Mer. 117. He says that different reasons have been assigned by different Judges for the operation of a devise over; some holding that it was a clear manifestation of intention that the declaration of forfeiture was not merely in terro-
      
      rem; and others that it was the interest of the devisee over which made the difference. But all agree that there must be a valid devise over in order to defeat the legacy. A devise to the executors is insufficient, or even a direction that the legacy shall fall into the residue. It is stated simply in Cleaver vs. Spur-ling, 2 P. Wms. 528, “ this is a good condition in our Law, and when the legacy'is once vested in the devisee over, Equity can-notfetch it back again.” The terms of the fourteenth clause of this will, are peculiar.' “If any legatee shall complain or express dissatisfaction” with any disposition of the will, a discretionary power is given to the executors to revoke the legacy and dispose of the same among the other legatees “ as to his executors may seem just and proper.”
    This bill was filed 23d December, 1851. Answers were put in, and the cause was at issue in June, 1852. On 2d June, 1853, the defendant, J. Bolton Smith, who had alone qualified on the will, executed a deed by which he transferred and assigned the legacies of the complainant to the other legatees in the proportions specified in the deed.
    It may first be remarked that by this fourteenth clause, nothing is given over to any devisee. In case of complaint or dissatisfaction, the executors are to have the authority, if they think proper to exercise it, to revoke the legacy.of the non-content, and they are certainly at liberty not to revoke it. It is very questionable whether this amounts to any thing more than a mere declaration in terrorem. But it is quite clear that this power given to the executors has never been exerted or exercised, and probably never will be. It was a very high power; nothing less than that of revoking part of the testator’s will and, to a certain extent, authorizing them to make a new will for him. The executors were Robert G. McCaw, J. Bolton Smith and James R. Bratton. The first named was evidently looked to by the testator, as he has appointed him especially the trustee of his real estate.
    The power thus given to them by the will, was (in the language of Chancellor Kent)  a personal trust and confidence, to be exercised by them jointly, according to their best judgment, under the circumstances contemplated by the will. It is not an answer to say that the other executors have declined to qualify. Where power was given to the executors to sell, and one of them refused to qualify, it was clear that the others could not sell. Sug. on Pow. 162. And to remedy this inconvenience, an act of Parliament was necessary. In order to the successful exercise of the high power confided in them, the testator intended to have the benefit of the judgment' and discretion of all those whom he had appointed to carry his will into effect.
    It may not be without meaning, that in the very next clause of his will, he provides, (though unnecessarily,) that in reference to the sale of his lands, those of his executors who qualify before the Ordinary, should act. The other executors may have deemed it the best mode of exercising their discretion to abstain from qualifying on the will, and thereby leave the disposition of the property to the judgment of the tribunals of the country. They have refrained from exercising the power of revocation vested in them, and the Court will not compel them to act, “for, as is elsewhere said, that would be against the nature of a power which is left to the free will and election of the party to execute it or not; for which reasons, equity will not say he shall execute it, nor do that for him which he does not think fit to do himself.” The legacies to the complainant remain, then, unrevoked.
    It is declared that the fourth clause of the testator’s will is null and void ; and it is thereupon ordered and decreed, that a writ of partition issue to divide the negroes, Alsey, Mary and Louisa, between the complainant and the defendant, Hugh Hacket; that the commissioners value the said slaves, and that the same be vested, in Hugh Hacket, upon his payment to the complainant of one moiety of the aforesaid value of the same.
    
      It is further ordered and decreed, that the defendant, J. Bolton Smith, account for Dick and his hire from the time of the filing of this bill, as part of the residiiary estate of testator, and that he account generally for his transactions as executor ; that reference be had before the commissioner for that purpose, and that he report thereon.
    It is further ordered and decreed, that the defendant, J. Bolton Smith, executor as aforesaid, pay to the complainant the sum of two thousand dollars, as provided by the tenth clause of the will, with interest thereon from 30th October, 1851.
    It is finally ordered and decreed, that the costs be paid out of the estate of the testator.
    The defendants, Hugh Hacket, William K. Hacket and James Hacket, appealed, and now moved this Court to reverse the decree on the grounds—
    1. Because it is respectfully submitted the provision in the testator, Wm. Hacket’s will, that if any of his legatees should complain or express any dissatisfaction with any disposition of his estate*as made in his said will, his executors were directed, and should have power to revoke the legacies of such complaining legatee, and dispose of the same between the other legatees, was not in terrorem merely, but said condition was valid, and its violation worked a forfeiture of all benefit under said will, to the party, complaining; and defendants insist that the complainant, by disputing the validity of the fourth clause of testator’s will, is not entitled either to the legacy of two thousand dollars bequeathed to her in the tenth clause, or any part of the residue bequeathed in the fourteenth clause.
    2. Because it is submitted that the testator, in his will, has empowered any one or more of his executors who might qualify, to revoke the legacies bequeathed to such of the legatees as might complain or become dissatisfied, and that the deed executed by J. B. Smith, the acting executor, is a valid and good execution of said power, and defeats all claim of the complainant to any benefit or interest under testator’s will.
    3. Because the power given in the will to revoke the said legacies, and to convey the same to other persons was executed, and is just as effectual to defeat the legacies as if the testator himself had given over the same to others.
    4. Because as R. G. McCaw and J. R. Bratton, the two other executors named in the will, had not only refused to qualify, but renounced their right to do so, it is submitted that all the power bestowed by the testator on his executors, devolved on the one who alone qualified and acted.
    The defendant, Hugh Hacket, appealed also on the further grounds—
    5. Because it is submitted that the bequest of the boy Dick, to him, the said Hugh Hacket, is valid and good, and that the request of testator to him, to permit Dick to work for Alsey, Mary and Louisa, is not binding on the said Hugh Hacket, and worked no forfeiture of said bequest.
    6. Because it is further submitted that if any part of the bequest in relation to Dick is not valid, it is only in relation to his services and hire during the lives of Alsey, Mary and Louisa.
    Williams, Smith, for appellants.
    
      Witherspoon and Wilson, contra.
    
      
      
         11 Stat. 154.
    
    
      
      
        Berger vs. Buff, 4 Johns, Ch. 368.
    
   The opinion of the Court was delivered by

Warjdlaw, Ch.

This Court is content with the Chancellor’s conclusion in this case and in general with his reasoning, although there is not entire concurrence of the members of the tribunal in the same views.

Mr. Williams says, (Wms. on Executors, 1094:) “ a condition that a legatee shall not dispute the will is in general considered in terrorem merely, and will not operate a forfeiture by reason of the legatee’s having disputed the legacy or effect of the will. But where the legacy is given over to another person in case of a breach of such condition, then, if the legatee controvert the will, his interest will cease, and vest in the other legatee. If, indeed, the legacy, instead of being given to a stranger, is limited over toj the executors in the event of such condition being broken, the condition is still regarded as in ter-rorem, and not obligatory. Yet, if the testator direct the le- ■ gacy to fall into the residue upon a breach of the condition, and dispose of that fund, the residuary legatee will be a particular legatee of the individual legacy; and, as such, will be entitled to it, if the condition is broken.”

'But the doctrine of the validity of such a condition, where there is a devise over, is too firmly established to be overruled, except upon grave consideration in some case where the point is necessarily involved in the decision; and that is not thé fact here.

Is there a devise over in the present case ? The testator does not himself revoke the legacy on breach of the condition by a legatee, but gives to his executors a discretionary power, (which they may or may not exercise,) to revoke the legacy after his death on breach of the condition, and to distribute the legacy, as to them might seem proper, among other objects of his bounty. There is no devise over to any particular person-No interest was vested in any one by the law at the death of testator which could not be fetched back by equity; according to the prominent reason assigned for forfeiture where there is a devise over. Nor is there any distinct manifestation of testator’s intent that the forfeiture is not declared merely in terro-rem ; according to another reason assigned for this doctrine. All is left to the discretion of the executors, and nothing is commanded peremptorily. The great distinction between a power and a trust, is that the former is peremptory in its character. My brethren think it may be unsafe to place the decision on the ground that there is no devise over, inasmuch as a power, when executed, derives its efficacy from the will or other instrument of grant, and has retro-active relation, and is incorporated with the instrument of grant. I say for myself, that this can hardly be predicated of a power to be exercised on a contingency which may never happen, and if it happen, to be exercised only if the donees think’ the exercise judicious. A power coupled with a trust may be sometimes as peremptory as a mere power. But here the executors have a discretion to revoke, and a discretion as to the distribution of the legacy when revoked. So far from any command to them, there is a mere delegation of authority to make on a contingency a new. will for testator if they so choose. No authoritative case requires us to consider the exercise of such power of appointment to executors as equivalent to a devise over by the testator himself; and I am unwilling to extend the efficacy of such a condition a line beyond the limit that authority compels me.

It Remains to inquire whether the power, if lawfully committed to the executors, of revoking the legacy of a legatee controverting the will, has been exercised in relation to the plaintiff. The actihg executor, without the concurrence of two other persons, who were appointed executors by the testator, and who are still living, although they have renounced the office of executor, has exercised, after the institution of the present suit, the power committed to the executors, of revoking the legacies to plaintiff, and of distributing her legacies among the other objects of testator’s bounty. A naked power given jointly to several persons does not survive if one of the donees dies. A nice distinction is established as to the exercise by surviving executors of a power given to them jointly with others who may be dead, dependant on the fact whether they are designated by name in the donation of the power, or are mentioned only in their official character as executors. By the common law, a power of selling lands jointly conferred on executors by name, is defeated by the death of one of them; but if an administrative power, pertinent to their office, be conferred on executors without naming them, it may survive on the death of one to others who come within the description of the grant of power. Where a power to sell is given to three executors generally, (the doctrine is different if they be named in the donation,) two surviving executors may sell, because the plural number of executors remains to satisfy the terms. Co. Litt. 113, a.; Vincent vs. Lee, 1 Sug. Pow. 143. Probably from the greater liberality of modern decisions, the power in such case would be adjudged to survive to a single executor. But the case of a surviving executor is not identical with the case of one acting executor, where other living persons have been appointed executors, and have renounced the office. Formerly^ where a power to sell was given to executors, and one of them refused the trust, the others could not sell. But by the statute of 21 Hen. VIII, c. 4, (2 Stat. 457) it is provided that where lands are willed to be sold by executors, and some of them refuse the office and administration of the will, sale by the executors who accept the administration, shall be as valid as if all the executors had joined. In Drayton vs. Glenn, 2 Des. 250, 'in note, it was held, perhaps against the weight of English authorities, that this statute did not extend to the case where a testator directed a sale without expressly empowering his executors to make sale. This decision probably induced our Act of 1787, (5 Stat. 15,) empowering a majority of the acting executors to sell and convey, where a sale was directed by testator without appointing any one to make it j and empowering the administrator with the will annexed to sell, if the executors should die or renounce. It is obvious, that neither the English statute nor our own alters the common law as to joint powers given to executors, except in the special case of a power to sell lands. If, by any liberality of construction, we might be disposed to extend the statutory provisions concerning a joint power to sell to other powers given jointly to executors, pertinent to their office, and necessary to their administration of estates committed to them, we could not venture to include a power altogether independent of their office as executors. In such case a power jointly conferred on two or more would not survive on the death of one, much less on his renouncing probate. In Townsend vs. Wilson, 1 Barn. and Ald. 608, where a power of sale was given to three trustees and one died, it was held that the survivors could not exercise the power. This judgment was denounced but followed by Lord Eldon in Hall vs. Dewes, 1 Jac. 189 (4 E. C. R. 88,) and maintained in Bradford vs. Belfield, 2 Sim. 264, (2 E. C. R. 407.) In Peyton vs. Bury, 2 P. Wms. 626, a testator devised the residue of his personal estate to J. S., provided she marry with the consent of his two executors; held, that on the death of one of them, the condition became impossible, and that she might marry without consent of the survivor. In Graydon vs. Hicks, 2 Atk. 16, a power to consent to the marriage of a legatee was given to several executors. One renounced the office and the administration. It was held that he was included within the description, and that the power was not annexed to the office of executor, and that it was independent of the rest of his duty as executor. Sir Edward Sugden, afterwards Lord St. Leonards and Lord Chancellor, in his treatise on powers, (1 Sug. Pow., 138,) says, that where the power is given to executors, they may exercise it, although they renounce probate of the will. He refers, for authority, to Keates vs. Burton, 14 ves. 434, and especially to a case in the reign of Henry VII, before the English statute above quoted. (2 Sug. Pow. 535). In this latter case, it is adjudged, that if a man makes his will, that his executors shall alien his land, without naming their proper names, if they refuse the administration and to be executors, yet they may alien the land : quod, fuit concessum per Fineux et Tremaile for clear law: Rede non dedixit. Renunciation of the office of executor implies no renunciation of a power not pertaining to the office of executor, not connected with the administrative functions of an executor. A power to revoke a legacy and make new distribution, is quite independent of the office of executor ; it might well be conferred on persons named as executors who do not act in the general administration of the estate ; and in effect, it delegates the office of testator, quite independent of the execution of an existing will. R. G. McCaw and J. R. Bratton still retain, notwithstanding their renunciation of ex-ecutorship, the independent discretionary power of revocation and appointment; and this power has not been exercised by them. In Cole vs. Wade, 16 Ves. 27, a testator gave the residue of his estate to his executors, in trust for such of his relations and kindred, and in such proportions, manner and form as his executors should think proper. Sir William Grant said: “ I conceive that wherever a power is of a kind that indicates a personal confidence, it must prima facie be understood to be confined to the individuals to whom it is given, and will not, except by express words, pass to others by legal transmission, who may happen to sustain the same character.” He quotes a case from Moor, 61, pi. 172, where all the judges concurred in holding that a power implying personal confidence, being joint,was determined by the death of one of the appointees. Pow ell vs. Morgan, 2 Vern. 91; Loyd vs. Spillet, 3 P. Wms, 344; S. C. 2, Atk. 148 ; Popham vs. Taylor, 1 Br. C. R. 168 ; Walter vs. Maunde, 19 Ves. 424; 1 Sag. Pow. 334, 336.

It is further argued that as the plaintiff cannot claim under and against the will, it is a case of election for her, whether she will give effect to the fourth clause of testator’s will; or renounce all the legacies in her favor ; at least that she is bound to make compensation from her legacies to the legatees whom she disappoints. But the Act of 1841 makes the legacy in the 4th clause void as against public policy, and the plaintiff does not claim against any valid portion of the will, and merely urges that the will shall be established according to its legal import and operation. In the proper construction of the will, we must consider the fourth clause as struck out, and forming no part of the testator’s dispositions. Besides, the legatees supposed to be disappointed here, are slaves, who have no civil rights or status in Courts, through which they might assert a claim for compensation.

Again it is argued, that nothing beyond the services or hire of Dick is given in trust for other slaves, and therefore void by the Act of 1841, and falling within the operation of the residuary clause. Hut either Dick is given absolutely in trust for slaves, or the remainder in him is not disposed of; and in either aspect, he passes by the residuary clause. The residuary legatees happen to be the next of kin of testator;

It is ordered and decreed, that the appeal be dismissed, and the Circuit decree be affirmed.

Johnston, Dunkin and Dargan, CO., concurred.

Appeal dismissed.  