US SUPREME COURT DECISIONS

The rule that an ancient deed to property in continuous possession of the person producing it proves itself on the theory that the witnesses are dead and it is impossible to produce testimony showing execution by the grantor is broad enough to admit, without production of the power of attorney, ancient deeds purporting to have been signed by agents.

The other necessary facts being present, and the possession of the property being consistent with its terms and the original records having been lost, a deed, over forty years old containing recitals that it was executed by an administrator under power of sale given by order of the court, will be presumed to have been executed in accordance with such recitals.

Quaere what rule obtains in the District of Columbia as to whether the power to convey given to two persons named in a will may be executed by the survivor when the designation as executors is descriptive of the persons, and not of the capacity in which they are to act.

In the District of Columbia, a power of sale given to more than one person named in a will as executors, coupled with the active and continuing duty of managing the property, making disposition thereof and changing investments for the benefit of the family of testator, is not a mere naked power to sell, but one that creates a trust which survives and can be executed by the survivor.

Where the duties imposed upon executors are active, and render the possession of the estate convenient and reasonably necessary, they will be deemed trustees for the performance of those duties to the same extent as though declared so to be in the most explicit terms.

35 App.D.C. 562 affirmed.

John H. A. Wilson, of Washington county, District of Columbia, by his will, probated March 20th, 1858, after providing for the payment of his debts, devised all of his property, real and personal, to his wife, Adelaide Wilson, chanrobles.com-red

Page 228 U. S. 218

during her life of widowhood, for the support of herself and his five minor children. In case of her death or marriage, the property was bequeathed to the testator's brother, Thomas O. Wilson, in trust for the use of the children.

"And I authorize and empower my said brother to exercise his own judgment and prudence in the discharge of the duties hereby confided to him, and it is my wish and desire that my executrix and executor hereinafter named shall and may at any time they shall deem best and to the advantage of my said wife and children, sell and convey any part or all of my real and personal estate, and invest the proceeds in goods, stocks, or otherwise, as they may consider best, for the benefit of my said wife and children, in fact to exercise a sound discretion in the management, disposition, and investment of my said estate for the purpose aforesaid, to-wit, for my wife and children."

There was a provision requiring the executrix and executor to care for his servants;

". . . lastly, I do hereby constitute and appoint my dear wife, Adelaide Wilson, executrix, and my affectionate brother, Thomas O. Wilson, executor, of this my last will and testament."

The will was probated March 20, 1858. Thomas O. Wilson, one of the executors, died September 21, 1858. On March 8, 1865, Adelaide Wilson made a deed in which, after referring to the will and its probate, and the authority conferred upon herself and her deceased brother-in-law as executrix and executor, to sell for the benefit of the wife and children of the testator, she, by virtue of the authority vested in her by said will, sold the land to Leonard Huyck, his heirs and assigns forever.

After eight mesne conveyances, duly recorded, the property, in February, 1905, was sold to the defendant, Chester A. Snow, he and his predecessors in title having held continuous possession of the property since 1865. chanrobles.com-red

Page 228 U. S. 219

Adelaide Wilson died March 28, 1906, and on October 23, 1906, the children brought this action of ejectment against Snow. He claimed under the deed of the executrix, but was not able to prove that she had ever qualified as such. A witness who was familiar with the records in the register of wills' office testified that he had found therein the will of John H. A. Wilson, with an indorsement that it had been approved by the register of wills, and an entry in a book that the will had been approved and filed, but that he found no other entries or papers to indicate that either Adelaide Wilson or Thomas O. Wilson had ever qualified as executors or received letters testamentary; that the bond book for December 30th, 1856, to April 20th, 1861, was missing, and that, in that book, the bond of the executors would have been recorded if one had been given; that the books containing the returns of executors from 1856 to 1861 are missing; that he is unable to say whether the qualification of executors would be shown by the bond book alone or not; that he finds no docket entry relating to the case. Another witness who had frequent occasion to examine the records of the probate office between 1857 and 1860 testified that, during that period, the probate office was conducted in a negligent manner; that the witness during that period, in searching for original papers which had not been recorded,found them in a mass of others piled together in an empty fireplace in the building.

There was a verdict for the defendant. A motion for a new trial was overruled. The case was taken to the Court of Appeals, error being assigned on the refusal to charge that the burden was on the defendant to prove that the executrix had qualified; that there was no evidence that she had qualified; that the recitals in the deed were not evidence against the plaintiffs, and on the further ground that the court erred in refusing to direct a verdict for the plaintiffs. The judgment of the Supreme Court of the District was affirmed by the Court of Appeals of chanrobles.com-red

Page 228 U. S. 220

the District of Columbia, and the case brought here by writ of error.