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"Fourth: I hereby nominate and appoint said Thomas J. Allen executor of this my last will and testament with full power to sell and convey real estate when in his judgment it becomes necessary or proper. In witness whereof I," etc.

This clause is absolutely separate and distinct from the paragraph containing his appointment as trustee, in which the purposes of the trust are specifically set forth, and which contains no power of sale. Defendants admit that this is the material question in the case. That such authority was given to him as executor is not disputed. It is claimed by defendants that this power must be construed as extending to him as trustee, that the testator, having confidence in the executor, also named him as trustee, and it is therefore evident that this power was intended to follow him in that capacity. An eminent textwriter has said:

"If a testator in his will appoint his executor to be a trustee, it is as if different persons had been appointed to each office." 1 Perry on Trusts (5th Ed.), § 281.

Therefore, in considering this question, we should bear in mind continually the distinction between the two offices one individual is appointed to fill. Testamentary trustees in this State are now under the jurisdiction and control of probate courts, and the separation of the office of executor from that of such trustee is declared by statute. In attempting to ascertain the intention of the testatrix relative to the power granted to the trustee, we must presume that the will was made with reference to existing laws, as by its terms it appears that it was, thereby creating a trustee within the definition of the statutory "testamentary trustee." Act No. 253, Pub. Acts 1899, makes the provision above stated, as follows:

"SEC. 43. The term 'testamentary trustee' as used in this act includes every person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will or by any competent authority to execute a trust created by a will; and it includes such an

executor or administrator where he is acting in the execution of a trust created by the will which is separable from his functions as executor or administrator."

The duties of the two offices are distinct. The first terminates when the second begins. Unless from the will itself an intention on the part of the testatrix can be found that sales of real estate were to be made after the administration was closed, we must hold that the power to sell could only be exercised by the executor. There is no indication in the second paragraph of the will, which creates the trust, that such was her intention. The words

are:

"To manage said property, and to pay over the interest, rents, issues and profits thereof, semi-annually, to my daughter, during her natural life."

One case has been found where the language of the will was practically the same as that used in the will in this case, and the same persons were made executors and trustees, with power to the executors to sell the real estate. In construing this language the court said:

"The trust herein to 'manage' the property implies, by force of the term used, that the trustees are to retain it under their control, and is inconsistent with the idea that they have authority to sell or otherwise dispose of it. 'To manage an estate is, in common parlance, as well as legal acceptation, no authority to part with the entire interest.' Roosevelt v. Heirs of Fulton, 7 Cow. (N. Y.) 81. * * *

"Although the persons named in the will as its executors are the same as those to whom the testator directed the property to be distributed in trust for his children, yet the power of sale conferred upon the executors was not given by him to them as trustees, but terminated with their discharge as executors." Goad v. Montgomery, 119 Cal. 552, affirmed and followed in Estate of Trescony, 119 Cal. 568.

We have been able to find no case, and have been referred to none, which does not hold that in the absence of an intention to that effect, expressly or by fair implication

contained in the instrument creating a trust, a power to sell given to an executor cannot be exercised by the same person named as trustee. The same rule is also laid down in cases where the disputes related to the exercise of powers to sell real estate granted by will to executors and trustees, and the question raised was whether others than the persons named might exercise such powers. 2 Perry on Trusts (5th Ed.), § 493 et seq. Defendants have cited several Michigan cases as supporting their contention that the power to sell given the executor must be construed as extending to him as trustee. Of these cases those which have a bearing upon the question under discussion are none of them cases where an executor has also been designated as trustee, but all are where an executor is clothed with powers not administrative, and was to act in respect to the estate not as executor, but as the donee of a power in trust, and also where the instruments creating the power have provided for a sale of the estate for carrying out the purposes named therein. Such executors belong to and are of the class exempted from the provisions of Act No. 253, Pub. Acts 1899, by the terms of section 43, quoted above. Calkins v. Smith, 41 Mich. 409; Tracy v. Murray, 49 Mich. 35; Green v. Russell, 103 Mich. 638. These cases are not opposed to the rule we have discussed, but are founded upon it, and turn upon the authority to sell clearly expressed in the trust instrument. Our conclusion is that a trustee under this will was not authorized to sell the real estate.

Without reference to the question of being in law a trustee or whether a power of sale was given the trustee, the majority of the acts with which defendant Allen is charged were done without any claim or color of right. The circuit court so held in his opinion. He had no color of right to borrow money without authority of court, nor to give mortgages, or erect large improvements on lands not in the trust with borrowed and trust funds, and, even if he had authority to sell, he could make only such sales as in the due administration of this estate were necessary or

proper. Defendants bank and Selleck are not before the court as bona fide purchasers for value without notice. In the transaction with defendant bank it was a matter of loaning money to Allen on notes, and taking mortgages to secure the notes. The consideration of $6,730.86 for the deed made to it May 25, 1907, of the property in Flint, was practically the amount of these notes and mortgages. Defendant bank dealt with Allen as trustee of this estate. Its cashier, when the first loan was made, questioned in regard to the right of the trustee to mortgage the trust property. He acted for the bank in making all the loans, the mortgages, and the final deed. He always knew the purpose for which money was to be used, and knew that the money went into buildings and improvements, and the real estate upon which the money was expended. He took no mortgage upon the 135 acres which did not belong to the estate, although he knew that $4,500 of the money loaned went into buildings and improvements on that description of land. This large sum is included in the mortgages given on the trust property, and it is sought to enforce it against this trust estate, for the reason that it improved other estate in which these infant complainants are also remaindermen and their mother a life tenant. The statement of such a proposition is its sufficient refutation. The fact that the bank knew that it was dealing with a trustee in relation to trust property was sufficient to put it upon inquiry. Geyser-Marion Gold Mining Co. v. Stark, 106 Fed. 561, 45 C. C. A. 467 (53 L. R. A. 684); Smith v. Burgess, 133 Mass. 511; Jeffray v. Towar, 63 N. J. Eq. 530; Cohnfield v. Tanenbaum, 176 N. Y. 126-130. Such inquiry would have disclosed that defendant Allen had no authority to borrow money for any purpose or to mortgage or sell the real estate. This transfer was not a bona fide sale. It was an attempt, when it was discovered that the mortgages were worthless, to save the probable loss by a deed, made without any deliberation, or further and adequate consideration. These mortgages were void, the money borrowed created

no claim or charge against the estate. The power cannot be enlarged by construction. Tuttle v. First Nat. Bank of Greenfield, 187 Mass. 533; Bloomer v. Waldron, 3 Hill (N. Y.), 364; Parkhurst v. Trumbull, 130 Mich. 408. See, also, section 17, Act No. 253, Pub. Acts 1899. Much of what has been said in regard to the rights of the bank applies to defendant Selleck. He made the first payment, and has since occupied and had full use of property valued by him at $4,800 without further payment. The terms of the sale being $100 down, the balance in like payments each month without any interest for four years are such as to challenge investigation in the interest of complainants. There is no showing or claim that the remaindermen were informed of this transaction, or could consent to it.

We conclude that complainants are entitled to the relief prayed, and hold that all of the sales, contracts, and mortgages made by defendant Allen of and in relation to this trust property were void and should be set aside; that the moneys received by defendant Allen from the bank are no charge against the trust estate, the farm of 135 acres, or the cestuis que trustent; that whatever claim defendants have or relief they are entitled to must be against defendant Allen personally; that complainants are entitled to an accounting with defendants bank and Selleck and wife for all rents and income from the property taken by them under their claimed conveyances, and that complainant Effie A. Gibney, if she so elects, is entitled to an accounting with defendant Allen under the general prayer in the bill of complaint, and a decree will be entered according to this opinion.

The cause will be remanded for further proceedings. Costs of both courts are awarded complainants.

BLAIR, C. J., and GRANT, HOOKER, and MOORE, J.J. concurred.

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