annexed succeeds the former executors, by virtue of his office, in the execution of the power conferred upon them officially, whether their number be one or more. He not only succeeds to the office but to the powers of all the former incumbents of it.64

§ 1241. Powers in Trust Do Not Devolve to Administrator With Will Annexed.

65

A testator in his will may confer a special trust upon his executor, with some discretion as to its fulfillment. This would indicate a personal confidence reposed in the executor and prima facie is to be understood as being confined to the individual to whom it is given and therefore, without express words, does not pass to others." The rule is, in the absence of a statute to the contrary, that special powers given to the executor do not pass to the administrator with the will annexed unless the will expressly or impliedly continues them to such administrator. The powers and duties which are imposed upon an executor as a trustee are in the nature of a personal trust or confidence reposed in him by the testator and, inasmuch as they can not be delegated, do not devolve upon the administrator with the will annexed.66 A stat

64 Cohea v. Johnson, 69 Miss. 46, 13 So. 40.

65 Cole v. Wade, 16 Ves. Jun. 27; Walter v. Maunde, 19 Ves. Jun. 425; Down v. Worral, 1 Myl. & K. 561.

66 Ingle v. Jones, 9 Wall. (U. S.) 486, 19 L. Ed. 621; Hayes v. Pratt, 147 U. S. 557, 37 L. Ed. 279, 13 Sup. Ct. 503; Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475, 615; Penn v. Fogler, 182

Ill. 76, 55 N. E. 192; Hodgin v. Toler, 70 Iowa 21, 25, 59 Am. Rep. 435, 30 N. W. 1; Warfield v. Brand's Admr., 13 Bush (76 Ky.) 77; Enlow v. Bethel College, 21 Ky. L. 31, 67 S. W. 989; Farwell v. Jacobs, 4 Mass. 634; Bennett v. Chapin, 77 Mich, 526, 533, 7 L. R. A. 377, 43 N. W. 893; Cohea v. Johnson, 69 Miss. 46, 13 So. 40; Stoutenburgh v. Moore, 37 N. J. Eq. 63; Horsfield v. Black, 40 App. Div.

ute providing that "administrators with the will annexed shall have the same authority to perform every act and discharge every trust as the executor named in the will would have had, and their acts shall be as valid and effectual for every purpose," does not change the rule. The acts and trusts referred to must be understood as those pertaining to the office of executor.67

Many of the duties conferred upon an executor by a testator in his will are foreign to the ordinary functions of the office and such powers never devolve to the administrator with the will annexed unless it was the intention of the testator that he should become the donee of the power in the place of the executor appointed by will. If the will grants the executor or trustee certain powers in trust but makes no provision for a successor to the powers, the powers, however, are not extinguished because of the appointment of administrator with the will annexed who can not exercise them, for a court of equity will not permit the trust to fail for want of a

(N. Y.) 264, 57 N. Y. Supp. 1006; Gehr v. McDowell, 206 Pa. St. 100, 55 Atl. 851; Belcher v. Branch, 11 R. I. 226; Rhode Island Hospital Trust Co. v. Pitcher, 16 R. I. 350, 16 Atl. 141; Frisby v. Withers, 61 Tex. 134.

"The power to pass to the administrator cum testamento annexo must be for an administrative purpose, and not to execute a collateral trust."- Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475, 615.

Where an administrator de bonis non cum testamento annexo is appointed upon the death of an executor who was also appointed by the will the trustee of a fund arising out of the estate of the testator, such administrator does not succeed to the rights or duties of trustee of such fund.-Knight v. Loomis, 30 Me. 204.

67 Beekman v. Bonsor, 23 N. Y. 298, 303, 80 Am. Dec. 269; Harrison v. Henderson, 7 Heisk. (54 Tenn.) 315; Estate of Besley, 18 Wis. 451.

trustee, but will appoint one with authority adequate to discharge the duty.68

The idea that a trustee may or must be appointed to execute trusts conferred by the will which are not in the scope of the common law duties of an executor is based upon the idea that an executor at common law had no control over the realty, and a power conferred on him to sell realty does not pass to the administrator. Of course, the rule would not apply and the reasoning have no application in jurisdictions where the statute provides that an administrator with the will annexed shall have all the rights and powers and is subject to the same duties as if he had been named executor.69

§ 1242. Right of Administrator With Will Annexed to Sell Property: Where Direction in Will Is Imperative.

It may be stated generally that where a testator authorizes the executor named in his will to mortgage or sell real property and to distribute the proceeds in a manner specified for the benefit of others, a special confidence and trust are reposed in the one appointed as executor in the will, and such powers do not devolve upon an administrator with the will annexed.70 However, there are modifications of the rule, since an imperative direction is not classified the same as a discre

68 Ingle v. Jones, 9 Wall. (U. S.) 486, 19 L. Ed. 621; Hayes v. Pratt, 147 U. S. 557, 567, 37 L. Ed. 279, 13 Sup. Ct. 503; Penn v. Fogler, 182 Ill. 76, 55 N. E. 192; Cooke v. Platt, 98 N. Y. 35.

.

69 Creech v. Grainger, 106 N. C. 213, 10 S. E. 1032.

Probate originally affected personalty only, but now generally changed by statute, see § 1183.

70 Williams Exrs. (3d Am. ed.) **821, 822.

tionary power, and also because of statutory regulations. Where the will imperatively directs the sale of property and the power of sale is confided in the executor virtuti officii, such power of sale may be exercised by an administrator with the will annexed.71

Where the will expressly authorizes a sale by any person legally qualified to administer the estate, the power of sale devolves upon the administrator with the will annexed and he may make such sale without order of court;72 and where it appears from the will that the power to sell realty is conferred upon him as, of course, the administrator with the will annexed may sell.78 If the will contains directions for the sale of real property but appoints no executor, the power devolves upon the administrator with the will annexed by virtue of the office, it being considered in such a case as an incident thereto.74

Where a power of sale is given to the executor for the purpose of paying debts or legacies, and especially where there is an equitable conversion of land into money for the purpose of such payments and for distribution, and the power is imperative and does not grow out of a personal discretion confided to the individual, such power belongs to the office of the executor and under

71 Cohea v. Johnson, 69 Miss. 46, 13 So. 40; Schroeder v. Wilcox, 39 Neb. 136, 57 N. W. 1031; Koopman v. Carroll, 50 Neb. 824, 70 N. W. 395; Saunders v. Saunders, 108 N. C. 327, 12 S. E. 909; Evans v. Chew, 71 Pa. 47.

72 Rollins v. Rice, 59 N. H. 493. 73 Hodgin v. Toler, 70 Iowa 21, 59 Am. Rep. 435, 39 N. W. 1

74 Kidwell v. Brummagim, 32 Cal. 436; Penn v. Fogler, 182 Ill. 76, 55 N. E. 192; Jackson v. Ferris, 15 Johns. (N. Y.) 346; Council v. Averett, 95 N. C. 131.

Contra: Baumeister v. Silver, 98 Md. 418, 56 Atl. 825; McElroy v. McElroy, 110 Tenn. 137, 73 S. W. 105.

the statute passes to and may be exercised by an administrator with the will annexed,75 and in fact he is under an imperative obligation to exercise the power.76

§ 1243. The Same Subject: Where Will Gives Discretionary Power of Sale.

Where the will contains no express direction for the executor to sell, an administrator with the will annexed does not have the power of sale which might be vested by implication in the executor named, even though the statute may confer on such administrator with the will annexed the same power to sell realty as is given by the will to the executor." And a discretionary power of sale vested in the executor named in the will can not be exercised by the administrator with the will annexed78 unless there is a provision to that effect in the will.79

§ 1244. The Same Subject: Statutory Regulations.

In many jurisdictions the administrator with the will annexed is by virtue of statute invested with all the

75 Mott v. Ackerman, 92 N. Y. 539; Kelsey v. MacTigue, 171 App. Div. 877, 157 N. Y. Supp. 730; Carpenter v. Bonner, 26 App. Div. (N. Y.) 462, 50 N. Y. Supp. 298; Drummond's Admr. v. Jones, 44 N. J. Eq. 53, 13 Atl. 611.

76 Kelsey v. MacTigue, 171 App. Div. 877, 157 N. Y. Supp. 730.

In Crouse v. Peterson, 130 Cal. 169, 80 Am. St. Rep. 89, 62 Pac. 475, 615, it was held the administrator with the will annexed had the same powers as were given to the executor, as to paying debts and legacies, but in Syme v.