#### LEE A. DENSON and Wife, JEANIE SAUNDERS DENSON, v. PINE STATE CREAMERY COMPANY.

(Filed 17 February, 1926.)

Wills — Trusts—Power of Sale — Deeds and Conveyances — Intent—Investment of Proceeds of Sale.

Where it is expressed in a will that the trustee therein appointed shall have unrestrained power to sell lands of the estate, and invest and reinvest the proceeds without requirement on the part of the purchaser to see to the proper application of the funds, it is not required of the trustee in conveying the lands to expressly refer to the power contained in the will, if it clearly appears from, the interpretation of the conveyance that it was the intent to make the deed thereunder, and the grantee therein for value gets a clear title when such intent appears, though the proceeds of sale are not invested in conformity with the trusts imposed.

Appeal by defendant from Mid/yette, J., at Second November Term, 1925, of Waee.

Affirmed.

*199This is a controversy without action. It concerns the will of Jane Claudia Johnson, who died 10 March, 1900. The will is duly exemplified and recorded in "Wake County, Record of Wills, Book D, at p. 341, et seq. Two items of the will, six and ten, are involved in the controversy.

Bradley S. Johnson, trustee, and individually, on 15 September, 1916, executed and delivered a deed to certain land in fee simple, to plaintiff, Lee A. Denson, in consideration of $3,000. Bradley S. Johnson did not account for or reinvest any part of said three thousand dollars ($3,000) as belonging to the trust estate created by item six of said will of his mother. The land is part of the land set forth in items six and ten of Jane Claudia Johnson’s will. The deed is recorded in the register of deeds office of Wake County, in Book 307, p. 271. The defendant, for $11,000 contracted and agreed to purchase from Lee A. Denson a part of the land deeded Lee A. Denson by Bradley S. Johnson, trustee and individually, but has refused to perform its contract, contending that Lee A. Denson did not have a fee-simple title to the land that it agreed and contracted to purchase. This action is brought to determine if Den-son could convey the defendant a fee-simple title.

There is no controversy that as to the land devised under item 10 of the Johnson will, Bradley S. Johnson had a right to convey to Lee A. Denson a fee-simple title, it is contended that as to the land in item 6, if he had a right, the power given by the will was not exercised as required by law.

Item 6 of the will is as follows: “I devise to my son, Bradley S. Johnson, and his heirs, the two lots on which my brother Col. William J. Saunders has for years resided in Raleigh, North Carolina, in trust for the use of my said brother and wife, during their lives, and for the use of the survivor, and after the death of the survivor, for the use of my niece Jeanie C. Saunders, with power to said trustee to sell and reinvest the same, whenever he shall think best, and direct also that this trust shall not be destroyed nor executed so as to divest, and for the purpose of perfecting and preserving it, I direct that on the death of my niece, Jeanie, without issue living at the time of her death the said property shall pass to my grandson and his right heirs. And I direct that the said property after the death of my brother and his wife, shall be held by the said trustee for the sole use of the said niece free from the control of any husband she may have and without liability for his debts or contracts, and with power to her to devise the same by last will, but if she die intestate and without issue surviving her, then the property is to pass to my grandson and his right heirs as above directed.”

The material part of item 10, is as follows: “I give, devise and bequeath all the rest and residue of my property of every description, and wheresoever situate, over which I have any power or -testamentary con*200trol, whether by virtue of the provisions of any deed or independent of any such provisions, to my son, Bradley S. Johnson, his heirs, executors and administrators, in trust,” etc. . . . “And in order that the said trust may better be carried into effect, I hereby authorize and empower my said son as such trustee, to sell and convey the whole or any'part of the property so devised and bequeathed to him in trust, for the purpose of investment or reinvestment, with the consent of my said husband without liability on the part of any purchaser to see to the proper application of the purchase money. And from and after the death of my said husband, it is my will that the said trust shall cease," and the said property and .any interest or investment thereof, freed of the said trust, shall pass to and devolve upon my said son, Bradley S. Johnson, if then alive, in fee simple as to the realty, and absolutely as to the personalty; and if not then alive, it is my will that the same shall pass to his heirs at law, distributees and next of kin.” That Bradley T. Johnson, the husband of the said Jane Claudia Johnson, mentioned in the said will, died on or about 14 February, 1903. That William J. Saunders, mentioned in said will died on or about 16 November, 1906; and his wife died on or about 10 January, 1913; and that their niece Jeanie O. Saunders, mentioned in item six of said will is now the wife of the said Lee A. Denson and is a plaintiff in this action. That Bradley S. Johnson, the trustee named in the sixth and tenth items in said will, died on or about 10 May, 1917, after having made the deed to Lee A. Denson on 15 September, 1916. His son, Bradley T. Johnson, and who is the grandson referred to in item six of the will, became the trustee under said item six of the will, and thereafter, by authority of a special proceeding before the clerk of the Superior Court of Wake County, said Bradley T. Johnson resigned as trustee and Claude B. Denson was appointed trustee under said item six of said will.

The court below rendered the following judgment: “This controversy without action duly coming on to be heard and being heard before the undersigned judge, the court is of the opinion and finds and adjudges that the deed in controversy conveyed a good title to Lee A. Denson and that the deed tendered by the plaintiffs to the defendant is a good and sufficient deed to convey the land therein described to the defendant in fee simple; and that the defendant be, and it is required to accept said deed and pay to the plaintiffs the purchase price of $11,000.”

The defendant excepted to the judgment, assigned error and appealed to this Court. The material language in the Bradley S. Johnson deed to Lee A. Denson, will be considered and set forth in the opinion.

:Robert N. Simons for plaintiffs.

Biggs & Broughton for defendant.

*201Clarkson, J.

It is contended by defendant that tbe deed from Bradley S. Johnson, individually and as trustee, to plaintiff Lee A. Denson, did not convey a perfect title for any lands wbicb passed to Bradley S. Johnson, trustee, by virtue of item 6 of the will, for the reason that the said land does not refer to the power under the will conferred by item 6. In item 10, the trustee is given power to sell and convey “the whole or any part” of the property, “without liability on the part of any purchaser to see to the proper application of the purchase money.” While in item 6, the sole provision is “with power to said trustee to sell and reinvest the same whenever he shall think best.” Bradley S. Johnson did not account for or reinvest the fund under item 6.

The pertinent portions of the deed showing the exercise of power in the deed to Lee A. Denson, as to the land in item 6, are as follows:

(1) “This deed made this 15 September, 1916, by Bradley S. Johnson and wife, Nannie E. Johnson, and Bradley 8. Johnson, trustee, under the will of Mrs. Jane Claudia Johnson, of Goochland County, Virginia, parties of the first part, and Lee A. Denson, of Ealeigh, Wake County, North Carolina, party of the second part”:

(2) “Witnesseth: That the said Bradley S. Johnson and wife, Nannie E. Johnson and Bradley 8. Johnson, trustee, under the will of Mrs. Jane Claudia Johnson, in consideration of one hundred dollars and other valuable considerations,” etc.

(3) “Being lots one, two, three, four and five, and the irregular shaped alleyway, shown on the map, survey and plat of E. G. Ball, engineer, recorded in Book of Maps, 1915, at page 40, in the office of the register of deeds of Wake County, and being part of the lands devised to Bradley S. Johnson and¡¡ Bradley 8. Johnson, trustee, under the will of Mrs'. Jane Claudia Johnson in Book D, at page 341, register of deeds office of Wake County.”

(4) “In testimony whereof, the said Bradley S. Johnson and wife and Bradley 8. Johnson, trustee, have hereunto set their hands and seals the day and year first above written.

Bradley S. Johnson (Seal)

NaNNie E. JohNSON (Seal)

Bradley S. Johnson, Trustee. (Seal)”

Under item 10 of the Jane Claudia Johnson will, Bradley S. Johnson was the owner in fee of the land at the time he conveyed a part of the land willed to him under item 10 to Lee A. Denson — he did not have to exercise the power contained in that item. The trust had ceased, and he was the fee-simple owner of the land. There can be no contention that Lee A. Denson has from the deed of Bradley S. Johnson and wife, Nannie E. Johnson, a fee-simple title to this land. He could only convey *202tbe land under item 6 to Lee A. Denson, under tbe power and authority given in item 6. Did be do tbis? We are of tbe opinion tbat be did. "We tbink tbe above excerpts from tbe deed show a clear intention. Tbe fact tbat be conveyed it as trustee shows tbat tbe power under item 6 was exercised. In fact, under item 6, be could only convey as trustee. In item 10 be could only convey as an individual. In tbe deed be distinctly recites in three places “Bradley S. Johnson, trustee under the will of Mrs. J ane Claudia J ohnson.” He also defined tbe land as “being part of tbe land devised to Bradley S. Johnson and Bradley S. Johnson, trustee,” etc. Any other construction would make these words surplusage, senseless and meaningless.

Perry on Trusts, vol. 2 (6 ed.), part sec. 511c, lays down tbe well accepted rule: “Tbe donee of a power may execute it without expressly referring to it, or taking any notice of it, provided tbat it is apparent from tbe whole instrument tbat it was intended as an execution of tbe power. Tbe execution of tbe power, however, must show tbat it was intended to be such execution; for if it is uncertain whether tbe act was intended to be an execution of tbe power, it will not be construed as an execution. Tbe intention to execute a power will sufficiently appear,— (1) When there is some reference to tbe power in tbe instrument of execution; (2) where there is a reference to tbe property which is tbe subject-matter on which execution of tbe power is to operate; and (3) where the instrument of execution would have no operation, but would be utterly insensible and absurd, if it was not the execution of a power.” (Italics ours.)

Mr. Justice Story, in Blagge v. Miles, 1 Story, 426, lays down tbe following rule: “Tbe main point is to arrive at tbe intention and object of tbe donee of tbe power in tbe instrument of execution, and tbat being once ascertained, effect is given to it accordingly. If tbe donee of tbe power intends to execute, and tbe mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make tbe execution valid and operative. I agree tbat tbe intention to execute tbe power must be apparent and clear, so tbat tbe transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all tbe circumstances, tben tbat doubt will prevent it from being deemed an execution of tbe power. All tbe authorities agree tbat it is not necessary tbat tbe intention to execute tbe power should appear by express terms or recitals in tbe instrument. It is sufficient tbat it should appear by words, acts or deeds demonstrating tbe intention.”

Tbis position of Mr. Justice Story is followed by tbe Supreme Court of tbe United States, in Warner v. Conn. Mutual Life Ins. Co., 109 *203 U. S., 357, Matthews, J., speaking to tbe question; Willier et al. v. Cummings et al., 91 Neb., 571; Funk v. Eggleston, 92 Ill., 515.

Ashe, J., in Taylor v. Eatman, 92 N. C., p. 607, says r “As a general rule, in executing a power, tbe deed or will should regularly refer to it expressly, and it is usually recited; yet it is not necessary to do tbis, if tbe act shows that tbe donee bad in view tbe subject of tbe power at tbe time. 2 Washburn on Real Property (4 ed.), 658.” Siler v. Ward,, 4 N. C., 161; Exum v. Baker, 118 N. C., 545; Kirkman v. Wadsworth, 137 N. C., 453; Carraway v. Moseley, 152 N. C., 351; Matthews v. Griffin, 187 N. C., 599.

Brown, J., in Kadis v. Weil, 164 N. C., p. 87, speaking to tbe subject, says: “Tbe contention of tbe defendant that it was tbe duty of tbe plaintiff to see to tbe application of tbe proceeds derived from tbe sale to him, and see that tbe same was reinvested in real estate by tbe trustee, cannot be sustained. It was so held in England, but is not tbe law here as to a bona fide purchaser for value. Hauser v. Shore, 40 N. C., 357; Whitted v. Nash, 66 N. C., 590; Grimes v. Taft, 98 N. C., 198; Hunt v. Bank, 17 N. C., 60; 39 Cyc., pp. 378 and 379; A. & E. (2 ed.), vol. 28, pp. 1130 and 1131.”

Tbe language in item 10 relieving tbe purchaser from liability to see to tbe application of tbe purchase money, construed with item 6, does not change tbe law that a bona fide purchaser for value is not required to see to tbe application of tbe purchase money when tbe sale was made under tbe power conferred in item 6.

From tbe record, tbe judgment of tbe court below is

Affirmed.