Page:Federal Reporter, 1st Series, Volume 7.djvu/27

 terms, and therefore it seepis to me the ruk does; BCst agply. Tke power with which the executor. is elothed by the will is purely disoretioaary. The, executor could not be compelled toaot. He was elothed simply with th© discretionary right to Bell the real estate outside of the state of Virginia and= re^invest the proceeds. Until the executor exercised this dist; oretion to sell for the purpose of re-inve&toient, the fee of tfaio land remains in the children, the devisees under the will, and there is no clause or word in the will intimating that the testator intended that the executor should take the fee. When the executor saw fit to Sell for the purpose of re-invest- ment under the powers with which he was elothed, that. passed the fee out of the children, as in the case of a power given any agent to sell real eeitate under a letter of attortiey - from his principal. "Mere powers are purely discretionary with the donee : he may or may not exercise or exocute them i at his sole will and pleasure, and no court can compel or control his discretion, or exercise it in his stead or placoy if for any reason he leaves the power unexeouted. Itds differ- ent with powers coupled with a trust, or which imply a trust." Perry on Trusts, § 248. So in Taylor t. Benhani, 5 How.' 269, the supreme court of the United States says: "One.of the tests on this subject isthat a naked power to .sell may . be exercised or not by executors, and is discretionary, while an imperative direction 'to sell and dispose of the proceeds, as in this case, is a power coupled with a trust." So in Sto- ry's Eq. Jur. § 1070, the rule is sfated in these terms: "In the nature of things there is a wide distinction between a power and a trust. In the former, 1?he party may or may not aot in his discretion; in the latter, a trust will be esecuted : notwithstanding his omission to act. " �But it is urged further that' this sale has been ratified by. the executor, by the receipt from Hughes of the proceeds of ' the sale made to Hyman^ The answer to this seems to mej to be — First, ihe executor received this mouey from Hughes = under the f «Use statemeati that the property had been sold at' a foreed sale ufider foredlosure pfoceedings, wheni'in fabt it; was. a mere colorable sale,j consented to,jand ukfnagcdjbyi ��� �