Gould v. Chappell

Robinson, J., delivered the opinion of the Court. After a careful consideration of this case, we are of opinion that the sale of the real estate mentioned in the proceedings ought not to be ratified. The sale was made by trustees under a power in the will of the late Alexander Gould, and reported to the Court below, in pursuance of the Act of 1870, chapter 370, which provides : “ No sale of real estate made by any trustee by virtue of any power or appointment contained in any deed or will, shall be valid, unless the same shall be confirmed by the Court, as in the case of sales made by trustees appointed by the Court.” By the terms of the will, the trustees therein named were directed to sell the real estate in question after the first day of January, 1870, either at public or private sale, in their discretion, and in such lots or parcels as they might deem best, the proceeds arising from said sale or sales to be distributed to certain persons named in the will. ⁴⁷⁰ The discretion thus reposed in the trustees was not a mere arbitrary discretion, hut a discretion coupled with a trust, and to he exercised solely for the benefit of the cestuis que trust. It was their duty, therefore, in making a sale of the property to act in a prudent and business-like manner, with a view to obtain as large a price as might, with due diligence and attention, he fairly and reasonably obtainable under the circumstances.

In other words, to exercise that diligence and caution which a careful and prudent owner would observe in the sale of his own property. If the sale be made under circumstances of haste and imprudence, or if the trustees fail in reasonable diligence in inviting competition, or adopt an injudicious and disadvantageous mode of selling the property, a Court of Equity ought not ratify the sale. Ord vs. Noel, 5 Madd., 438; Harper vs. Hayes, 2 Giff., 210; Turner vs. Harvey, Jac., 178; Bridger vs. Rice, 1 Jac. & Walk., 74; Mortlock vs. Buller, 10 Ves., 292; White vs. Cuddon, 8 Cl. & Fin., 766. In the exercise of the discretion thus conferred upon them, it was the duty of the trustees to act in view of the circumstances existing at the time of the sale, and not at the date of the will.

The will was admitted to probate in 1859, and the property was sold in 1872. We all know what a difference an interval of a few years makes in the value of unimproved real estate lying upon the outskirts of a growing city, and what might been a judicious mode of selling this property in 1859, may he an injudicious and disadvantageous mode in 1872, thirteen years afterwards. In this case, twenty acres of land lying within the limits of a growing and' prosperous city, were sold as an entirety for the sum of twenty-five hundred dollars per acre. The trustees in their report say, they have frequently since the first of January ? 1870, endeavored to sell the property in question at public and private sale, both in small and large parcels.

The proof shows that the twenty acres were offered once ⁴⁷¹ at. public sale Cts an entirety, aud that one of the trustees had offered the same to several purchasers of real estate at private sale, but at prices far in advance of what the tract was sold to the appellee. It does not appear that any effort was made to sell so valuable a tract of land either in building lots, or by the front foot, although Charles and Hanover Streets extended, two of the principal business streets in the city, pass through the property. We are satisfied from the proof in the record, that this property ought to have been sold, or at least offered for sale, in building lots or by the front foot. In addition to the testimony of witnesses who say that in their judgment this was the proper and judicious mode of selling the property, we have the fact that a tract of land adjoining, known as The Methodist Graveyard, containing six acres, was sold by the front foot, within nine months after the sale made in this case and brought over five thousand dollars per acre.

And it is doubtful, to say the least, whether it was intrinsically more valuable than the property sold by the trustees; one witness thinks there was perhaps four to five hundred dollars difference in favor of the Graveyard property. The fact that the trustees were anxious to put money in the hands oí' some of the more needy cestuis