Scholl v. Olmstead , 84 Ga. 693 ( 1890 )

Simmons, Justice.

The facts of this case will be found in the official report. It was contended by counsel for the plaintiff in error that the power to sell the property mentioned in the second item of the will was given to Olmstead and Adams solely as executors; and that after they had been discharged as exeeutors from the administration of the estate, they had no power to sell the same as trustees. It will be observed that the testatrix named these gentlemen as her executors, and gave them this property in trust; and it is true that in all her directions in the will she speaks of them as “ my executors.” But taking the whole will together, and looking at the extent and duration of the duties she imposes upon them, we think it is clear that she not only intended that they should act as her executors so far'as the administration oí her estate under the law was concerned, but that she also intended, after the estate was properly administered, that they should act thereafter as trustees in looking after, taking care of, and if necessary, selling the property mentioned in the second item of the will. “ The duties imposed, and the powers given to the executors in the will, are such as necessarily to constitute them trustees. They reach much beyond mere administration.” All the duties imposed upon them in regard to this property are the powers and duties of trustees; they do not belong to the office of executors merely. In one item of the will, the testatrix directs that the income of a thousand dollars be perpetually applied by her executors to beautifying a lot in the cemetery; and to carry out other directions which she gives to her executors, would take a long number of years. All this goes to show, to our minds, that she did not intend to restrict these powers to these gentlemen as mere executors, but that she intended to make them trustees after the estate had been administered. We therefore think that the judgment of the court below, holding that the sale made by Messrs. Olmstead and Adams was legal and valid, was correct. Upon this subject, see the following authorities : Sheets’ case, 52 Pa. St. 266 ; Perkins v. Moore, 16 Ala. 14; 1 Perry on Trusts, §268; Woerner’s American Law of Administration, 2d vol. see. 340, where the author says “ that the conveyance of a power to the executor of the will does not necessarily annex such power to the office; it may be that the word ‘executor’ is deseripüo persones, simply employed to designate the donee of such power in trust, instead of repeating his name; and if such appear to be the testator’s intention — where, for instance, the power given is founded in the personal confidence of the testator in the person whom he nominates as executor and trustee, — the administrator with the will annexed will not succeed to the same.”

Judgment affirmed■