Joseph P. Bradley

“ In disposing of the equity case on appeal, that court fully considered the power of the trustee, Henry W. Vick, both under the deed and under the will, and came to the unanimous conclusion that he had full power and authority to make the partition in question. As to the power under the will the court had no doubt, and as to that given by the deed they relied on the authority of Abell v. Heathcote and the opinions of Sugden and Fearne. And although this conclusion was not embraced in the decree so as to become res judicata, yet it was the ground on which the decree was rested. ”

“ Farquhar (11 Ves. 467) , that a power to sell simply, does not authorize a partition. He then adds: 'Until the question shall receive further decision, it can scarcely be considered clear that a power to exchange will authorize a partition;' but he proceeds to show that the decision in Abell v. Heathcote must have been based on the power to exchange, and not on any additional words. ”

“ In pursuit of the supposed rights of Mary B. Phelps, the plaintiffs, in February, 1871, exhibited a bill in the Chancery Court of Washington County, Mississippi (in which the lands in controversy were then situated) , against the defendants, George C. Harris and Helen his wife, to remove the cloud from the supposed title of said Mary, raised by said partition and the will of Henry G. Vick. The defendants relied on the validity of said partition and will, and the question was fully contested. In November, 1873, a decree was made dismissing the bill. ”

“ It is laid down as a rule that 'trustees may justify their administration of the trust fund by the instrumentality of others, where there exists a moral necessity for it;' and this is said to arise 'from the usage of mankind. If the trustee acts as prudently for the trust as he would have done for himself, and according to the usage of business; as, if a trustee appoint rents to be paid to a banker at that time in credit, but who afterwards breaks, the trustee is not answerable ”

“ It would be a disposal of the lands parted with; and the lands received would be the proceeds. It is to be considered that the words used are contained in a will, to which the rules of construction applicable to ordinary speech are to be applied, except where technical terms are employed. In a well-considered book on the construction of wills, the rule of interpretation is laid down thus: 1. ”