Hickok v. Still

Citations

• 168 Pa. 155
• 31 A. 1100
• 1895 Pa. LEXIS 769

Syllabus

<p>Trusts and trustees — Power of sale.</p> <p>A trustee cannot be permitted to deprive liimself of a power conferred upon him for the benefit of the trust, or so to fetter its exercise by himself or his successor'as to defeat the purpose of the trust.</p> <p>Testatrix by her will directed as follows: “ I authorize and empower my executor at any time during the lifetime of my husband with his assent, and I direct him immediately upon the decease of my said husband, or so soon thereafter as may be, to sell the whole or any part of my real estate for cash, upon credit or ground rent,” etc. On Oct. 20, 1890, the executor who was also the husband agreed with the plaintiff as follows : “ That if Geraldine H. Hickok desire to become a purchaser of that piece of ground or land, with house and appurtenances thereon .... —of which she is now lessee and occupier — at any time during her leasing of the property she may do so for the sum of nine (9) thousand dollars, to be paid as follows,” etc. The plaintiff was then in possession under a lease from the executor which did not end until May 1, 1894. The husband died ori Feb. 13, 1892, and on Dec. 3, 1893, plaintiff notified the administrator d. b. n. c. t. a. of her intention to purchase under the agreement. Held, that she was not entitled to a specific performance of the contract.</p> <p>The vice of the agreement was that it bound the trust estate no matter what the detriment to it might be, without giving it any corresponding advantage. This was not a use of the power, but a surrender of it for the time. It suspended the exercise of the discretion which had been given the executor and defeated the direction in the will for an immediate sale upon the husband’s death.</p>