Berger v. Duff
New York Court of Chancery
THE bill stated, that Joseph Icard, by will, authorized the plaintiffs, as his executors, and the survivor of them, to sell two lots of land in the city of JYew-YorJc, if imperious circumstances of the times, or the extreme hazard of depreciation in value of that property, should, in the best judgment of the plaintiffs, render it prudent to sell the same.
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THE bill stated, that Joseph Icard, by will, authorized the plaintiffs, as his executors, and the survivor of them, to sell two lots of land in the city of JYew-YorJc, if imperious circumstances of the times, or the extreme hazard of depreciation in value of that property, should, in the best judgment of the plaintiffs, render it prudent to sell the same. That after the death of the testator, the plaintiffs assumed the trust as executors, and the plaintiff, Icard, went to France, where he resided when the bill was filed. That on the 10th of October, 181S, at Paris, he, by power of attorney…
1Opinion of the Court
The Chancellor.
The executors cannot sell by attorney. The power given to them, by the will, was a personal trust and confidence, to be exercised by them jointly, according to their best judgment, under the circumstances contemplated by the will. One executor in this case cannot commit his judgment and discretion to the other, any more than to a stranger; for, delegatus non potest delegarL The testator intended, that his representatives should have the benefit of the judgment of each of the executors applied to the given case, so long as both of them were alive. The agreement to sell was not…
2Cited by15 opinions
- Wilson v. MasonIllinois Supreme Court · 1895
- Sinclair v. Jackson ex dem. FieldCourt for the Trial of Impeachments and Correction of Errors · 1826
- Wilder v. . RanneyNew York Court of Appeals · 1884
- Saunders v. WebberCalifornia Supreme Court · 1870
- Wills v. Cowper & ParkerOhio Supreme Court · 1825
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