- Power given trustee. A power given to a trustee, such as a power of sale, does not, in the absence of a special provision to that effect in its creation, pass to one to whom the trustee may convey the legal title;7 nor does it, in the absence of a showing of a contrary intention, pass, on his death, to his heirs, though the legal title so passes.8 Even the fact that a power is given to a trustee and "his assigns" does not authorize him, by assignment, to transfer the power to another.9

As to whether a power given to a trustee may be exercised, after his death or resignation, by one appointed in his place, a distinction has been drawn. In cases in which, from the terms of the instrument creating the power, it appears that the power is attached to the office, and is not conferred upon the trustee named personally, it may be exercised by a substituted trustee;10 while, if there is a discretion imposed

6. 1 Chance, Powers, 688: Sugden, Powers, 588; 2 Story, Eq. Jur. 1061; Piggott v. Penrice, Finch, Prec. Ch. 471; Toilet v. Toilet, 2 P. Wms. 489; Mitchell v. Denson, 29 Ala. 327; Lines v. Darden, 5 Fla. 51; Gilman v. Bell. 99 111. 144; Long v. Hewitt, 44 Iowa, 363; Howard v. Carpenter, 11 Md. 259; Sites v. Eldredge, 45 N. J. Eq. 632, 18 Atl. 214, 14 Am. St. Rep. 769; Robeson v. Shot-well, 55 N. J. Eq. 318, 36 Atl. 780; Coleman v. Beach, 97 N. Y. 545; Harrison v. Battle, 21 N. C. 213; Brown v. Phillips, 16 R. I. 612, 18 Atl. 249; Fronty v. Godard, 1 Bailey Eq. (S. C.) 517; Stamper v. Venable, 117 Tenn. 557, 97 S. W. 812.

7. Lewin, Trusts, (12th Ed.) 288, 759; 2 Perry, Trusts, Sec. 503; Cooke v. Crawford, 13 Sim. 91; Saunders v. Webber, 39 Cal. 287.

8. 1 Perry, Trusts, Sec. 340; Lor-ing, Trustees' Handbook (3rd Ed.) 54; Godefroi, Trusts (2d Ed.) 6.

9. Lewin, Trusts, 760; 2 Perry, Trusts, Sec. 495. But see Giselman v. Starr, 106 Cal. 651, a case of a trust to secure a debt.

10. 2 Perry, Trusts, Sec. 503; Freeman v. Prendergast, 94 Ga. 369, 21 S. E. 837; Haggin v. Straus. 148 Ky. 140, 146 S. W. 391; Safe Deposit & Trust Co. of Baltimore v. Sutro, 75 Md. 361, 23 Atl. 732; Bradford v. Monks, 132 Mass. 405; Lahey v. KortSec. 322]

Powers.

. A statute in terms vesting in the substituted trustee the same powers as belonged to the person originally named has, apparently, been regarded as vesting him with all such powers, though discretionary in their nature, in the absence of a clear intention to the contrary on the part of the creator of the trust.13

In the case of a power of sale given to one, not as executor, but as trustee, or without reference to any office, the fact that he was executor, and resigns that office, or that, though named as executor, he fails to act as such, does not, it seems, affect his power of sale.14

- Administrator cum testamento annexe In case a sole executor, given a power of sale, refuses to act, resigns, or dies, the question arises whether the adlight, 132 N. Y. 450, 30 N. E. 989: Boutelle v. City Bank, 17 R. I. 781, 24 Atl. 838.

11. 1 Perry, Trusts, Sec.Sec. 287, 503; Cole v. Wade, 16 Ves. 27; Doe d. Gosson v. Ladd, 77 Ala. 223; Security Co. v. Snow, 70 Conn. 288: 66 Am. St. Rep. 107, 39 Atl. 153; Edwards v. Maupin, 18 D. C. 39; Simmons v. McKinlock, 98 Ga. 738, 26 S. E. 88; Gambell v. Trippe, 75 Md. 252, 15 L. R. A. 235, 32 Am. St. Rep. 420, 23 Atl. 461; Young v. Young, 97 N. C. 132, 2 S. E. 78; Bailey v. Burges, 10 R. I. 422; Balote v. White, 2 Head (Tenn.) 703.

12. Gossen v. Ladd, 77 Ala. 223; Gibbs v. Marsh, 2 Metc. (Mass.) 243; Osborne v. Gordon, 86 Wis. 92, 56 N. W. 334; ante, Sec. 317, note 35.

13. See Chase v. Davis, 65 Mo. 102; Nugent v. Cloon, 117 Mass. 223; Sells v. Delgado, 186 Mass. 25, 70 N. E. 1036; Wilson v. Pen-nock, 27 Pa. St. 238.

14. Seholl v. Olmstead, 84 Ga. 693, 11 S. E. 541; Veazie v. Mc-Gugin, 40 Ohio St. 365; Moody v. Fulmer, 3 Grant (Pa.) 17; Mor-decai v. Schirmer, 38 S. C. 294; But see Bigelow v. Cady. 171 111. 229, 63 Am. St. Rep. 230, 48 N. E.

Ministrator cum testamento annexe- can exercise the power. Apart from statute, such administrator cannot exercise the power, unless it appears that the testator so intended.15

In most jurisdictions, statutes have been passed which provide, in more or less explicit terms, that the administrator c. t. a. shall have the same powers as were given to the executor by the will, and to what extent such a statute enables the administrator to exercise a power of sale given in terms to the person named as executor has been the subject of a considerable number of decisions. By some of the decisions such a statute is apparently regarded as vesting in the administrator any power of sale which was by the will given to the person named therein as executor,16 but other cases assert a distinction in this regard, which, in theory at least, is calculated to prevent the defeat of the testator's intention. The distinction referred to is that between, on the one hand, a power given to the person named as executor, to be exercised by him virtute officii, that is, as executor, and consequently

974. Aliter when a power is given to one as executor, Boland v. Tiernay, 118 Iowa, 59, 91 N. W. 836; Littleton v. Addington, 59 Mo. 275.

15. 2 Perry, Trusts, Sec. 500; In re Clay, 1G Ch. Div. 3; Lockwood v. Stadley, 1 Del. Ch. 298, 12 Am. Dec. 97; Thomas v. Owens, 131 Ga. 248, 42 S. E. 218; Hall v. Irwin, 7 111. 176; Hodgin v. Toler, 70 Iowa, 21, 59 Am. Rep. 435, 30 N. W. 1; Tainter v. Clark, 13 Metc. (Mass.) 220; Bennett v. Chapin, 77 Mich. 526, 7 L. R. A. 377, 43 N. W. 893; Compton v. McMahan, 19 Mo. App. 494; Conk-lin v. Egerton's Adm'r, 21 Wend. (N. Y.) 429; Wilis v. Cowper, 2

Ohio, 124; Evans v. Chew, 71 Pa. St. 47; Jones v. Fulghum, 3 Tenn. Ch. 193; Frisby v. Withers, 61 Tex. 134.

16. Shields v. Smith, 8 Bush. (Ky.) 600; Bay v. Posner, 78 Md. 42, 26 Atl. 1084; Sandifer v. Grantham, 62 Miss. 412; Evans v. Blackiston, 66 Mo. 437; Saunders v. Saunders, 108 N. C. 327, 12 S. E. 909; Sears v. Scranton Trust Co., 228 Pa. 126, 77 Atl. 423; In re Adams, 32 R. I. 41, 78 Atl. 524; Robinson v. Ostendorf, 38 S. C. 66, 16 S. E. 371; Mosby's Adm'r v. Mosby's Adm'r, 9 Gratt. (Va.) 584. See Eastner v. Fife, 32 Ohio St. 358; Coann v. Culver, 188 N Y. 9, 80 N. E. 362.