terms,and therefol'ejt seew.stome rI,l1e400,9; apply. 'rhe p<;>werwith which. the executor. ijlclothed by the willis. purely ·discretionary. The. executor could not he compelled to act. He was clothed simply with tb,e discretionary to ,sell the real estate outsida o,f ,the state of Virginia and: re..Wvest the proceeds. Until the exeeutor exercised this diat; cretion to sell for t4e purpose of re-investUlent, the fee, of thi$ land remains in .the childr:en, the devisees under the will, and there is no cllJ,use or word in the will intimatingthaLthe testator intended that the executor should thll fee. When the executor saw fit to sell for the purpose of re-investment under the powers with which he was clothed, that passed the fee out of the children, as in the case of a power given any agent to sell real eatate under a letter of from his principal. "Mere pOwers are purely discretionary with the donee: he mayor may not exercise or execute them . at his sole will and pleasure, and nocoutt· can compel or control' his discretion, or exercise it his stead or place,' if ' for any reason he leaves the power unexecuted. It ds different with powers coupled with a trust, or which imply a trust." Perry on Trusts, § 248. So in Taylor v. Benham, 5 How.'. 269, the supreme court of· the United States says: "One.of the tests on ,this subject is;that a naked power to :sell1Day, be exercised or not by executors, ahd is discretionary, while' an imperative direction I to sell and dispose of the proceeds, as in this case, is a power coupled with a trust." So in Story's Eq. Jur. § 1070, the rule is stated in these terms: "In the nature of things there is a wide distinction between a power and a trust. In,the fortner., the patty' may or may not aQt in his discretion j' in the latter, 'a trust ,will be elecuted: notwithstanding his omissionw act." But it is urged further thakthissale has been ratified by. the executor, by the receipt from Hughes of the proceeds ,of, the sale made to Hyman.' . The answer, to this sooms .to mel to be-First,the execJitorreceived this money· from Hughes, under the faJse ·property had been sold at'! afi>rced sale uilder foreclosure ]>foceedings;'w,hen{ !jn, Ifact 'it; was, a mere colorable sale.. consentedto.:and1U.JIittged"by,
18
I'BDEBAL REPORTER.
Hughes as the agent of Washington, and where there was no compulsion about it-a sale made simply by arrangement; second, the executor, being only empowered to sell for the purpose of re-investment, he could not ratify a sale not made by himself under the powers, so as to bind the devisees under the will, if they were necessary parties to the suit. The fact th'at the executor received the remnant of the proceeds of the property left, after the sale made in pursuance of the decree of the court in that case, cannot, it SElemsto me, be held to ratify a sale which he had no agency in making, and which he did not pretend to make, under the powers with which he was clothed. It is. further suggested that there has been undue delay in the bringing of this suit, but the proof shows that all these complainants were minors at the time these proceedings were had'; that they did not learn of the fact thai the property had been sold, or,in any way disposed of, until 1871, at which time those who were then of the age of 21 years were married women, and continued such until this suit was brought. There does not seem to me, therefore, to have been any such. delay in the bringing of this suit as makes this proceedinR what might be called a stale proceeding, within the meaning of the equity cases. It does not come within any of the limitation laws of the state of Illinois, and it seems to me it is not such a claim as should be considered stale. The other defendants in this case, Barling, Davis, and Mandel, claim a. title under Hyma.n, and ha.ve no better sta.nding in court than he. Under all the facts in this ease, therefore, and under the law as I think it should be applied to these facts, these complainants will be entitled to a decree allowing them to redeem these premises upon such terms as are equitable under all the facts in the case; and those terms will be-First, that they shall pay the amount due on the Williams trust deed, with the interest from the time it fell due, at the rate called for by the bond; in other words, Hyman' should be subrogated.othe position of Mrs. Williams.' He 'should also upon the balance of the money which receive 6 per
BRIDGES t1. SHELDON.
17
he has paid, from the time he paid it, including the amount paid by him for taxes and assessments, and for permanent improvements upon the premises; Hyman accounting for all rents and profits received by hini from the land, which should be deduoted from the amount so found due him.
BRIDGES
v.
SHELDON
and others.
(Oircuit Court, D. Vet'mont. January 6, 1880.) L STATEMENT OJ' FACTS.
v.7,no.1-2
A., B., and. C. severally held contracts with the 'United States for the supply of head-stones and blocks for soldiers' graves. A.purchased B.'s contract for $20,0011, giving four notes on time for the amount, and also bought C. 's contract, S. & S. becoming security for the payment of the purchase money, upon A. 'softer of a 'bonus, in three propositions, of $3,520.32. A. purchased stone of S: & S. for his own contract and for C.'s contract, at agreed prices. but, on'becoming assignee of all the contracts, A. made a written propo,sltiotl to 8. & 8. that they should furnish the marble for all the contracts, and the means to carry them on, recelving one-third the profits, guarantied to be to them at least $20,000. B. & S. assented in writing: "the price heretofore agreed upon for head-stones and blocks is not to be considered as included in the $20,000 mentioned; · · · full agreement, in accordance, to be hereafter executed;" to which was added, over the signatures of A. and B. & S., that "the full agreement, referred to above, may bc modified and made so as to fix the compensation of S. & S. by a definite price per head-stone and block in addition to the priceberetofore agreed upon; this, in lieu of the one-third interest, but not of the given sum of $20,000." The contract, drawn in pursuance thereof, provided that S. & B. should receive certain increased prices for head-stones and blocks, and" for interest and commissions on advances, 'and for their services ip. and about said business, 9 per cent. per a,nnum" on the advances until repaid, and 9 per cent. per annum on the prices of stones, 60 days &fWr shipment, until paid; that the stones should" be and remain the sole and abSOlute property" of 8. & 8. until setup in the cemeterieS; that B. & B. should furnish the "necessary machinery and machine shops, except said blast machlnllS and They shall alSo keep the same in repair;" that all moneys due from the government should be paid toB. &B., under powers of attorney from A., and that, "as soon after final settlement and' payment with and by the government as reasonably'may be," S. & B. should pay over to A. the balance remaining in their hands after deducting their com-