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which does not survive. In such case, there is no one who has a right to enforce an execution of the power. But when anything is directed to be done, in which third persons are interested, and who have a right to call on the executors to execute the power, such power survives. This becomes necessary for the purpose of effecting the object of the power. It is not a power coupled with an interest in the executors, because they may derive a personal benefit from the devise. For a trust will survive though no way beneficial to the trustee. It is the possession of the legal estate, or a right in the subject over which the power is to be exercised, that makes the interest in question. And when an executor, guardian, or other trustee, is invested with the rents and profits of land, for the sale or use of another, it is still an authority coupled with an interest, and survives."1 "It is not necessary that the interest coupled with the power should be a legal interest. An equitable interest is sufficient, and is regarded in this Court as the real interest. A trustee invested only with the use and profits of the land for the benefit of another, has an interest connected with his power. This was so understood in Bergen v. Bennett, (1 Caines Cas. in Error, 16); and in Eyre v. Countess of Shaftsbury, (2 P. Wms. 102,) a testamentary guardian, with authority to lease, was held to possess a power coupled with an interest, and capable of survivorship." It is not within the province of this work to enter into a close examination of the subject of powers, nor to lay down minutely the tests by which to distinguish mere naked powers from those coupled with an interest. So far as trustees are concerned, we have no reason to consider anything beyond the nature of the tenure by which they hold their estates. And considering their estate, in reference to the character of their cotenancy, the rule seems to admit of no exception at common law, that, in the absence of a limitation to them as tenants in common, whatever estate or title vests in them, vests in joint-tenancy, and that where title is vested in them at all, subject to specified trusts, a power is
thereby created coupled with an interest, and liable to survive to one trustee upon the decease of the others.1
Trust Estates vest in those who Accept.—The rule that a grant or devise of an estate to two or more as joint-tenants vests the entire estate in those who may be qualified to receive the grant or devise at the time it becomes operative, applies to a cotenancy in a trust estate. If one or more of the trustees renounce or disclaim the trust, the whole of the estate vests in the trustee or trustees who are willing to accept it. The person or persons thus renouncing, thereafter stand in the same relation to the estate as though they had never been named as trustees; while those accepting are entitled to the estate in the same manner, and to the same extent, as though they only had been named in the grant or devise.2
Co-Executors and Co-Administrators, "as such, are regarded in law as one person; and therefore if one of them sell the goods or the securities of the testator to a bona fide purchaser, who has no reason to suspect that such executor is committing a breach of trust, such puchaser will have a right to hold the same not only against the executors but also as against creditors and legatees." "Joint executors and administrators are possessed of the estate, each as of the entirety, and consequently the act of each is the act of all." But where by the will of the testator the executors receive the legal title to an estate, then they hold it “in the
1 Zebach v. Smith, 3 Binn. 69; Davoue v. Fanning, 2 Johns. Ch. 254; Muldrow v. Fox, 2 Dana, 79; Hunt v. Rousmaniere, 2 Mason C. C. 244; Wood v. Sparks, 1 Dev. & Bat. 389; Jackson v. Given, 16 Johns. 170; Burr v. Sim, 1 Whart. 266; Coykendall v. Rutherford, 1 Green. Ch. 360; Robinson v. Gaines, 2 Humph. 367; Warden v. Richards, 11 Gray, 278; Belmont v. O'Brien, 12 N. Y. 400.
*Crewe v. Dicken, 4 Ves. 97; Granville v. McNeile, 7 Hare, 156; Smith v. Wheeler, 1 Vent. 138; Hawkins v. Kemp, 3 East, 410; Cooke v. Crawford, 13 Sim. 96; Nicholson e. Wordsworth, 2 Swanst. 369; Adams v. Taunton, 5 Mad. 435; Sands v. Nugee, 8 Sim. 130; Bonifant v. Greenfield, Cro. Eliz. 80; S. C. 1 Leon, 60; Bayley v. Cumming, 10 Irish Eq. 410; Zebach's Lessee v. Smith, 3 Binn. 69; In the Matter of Stevenson, 3 Paige, 420; Chanet v. Villeponteaux, 3 McCord, 29; Niles v. Stevens, 4 Denio, 402; Leggett v. Hunter, 19 N. Y. 456.
* Hertell v. Bogart, 9 Paige, 57; Simpson v. Gutteridge, 1 Madd. Ch. 609; Saunders v. Saunders, 2 Litt. 315.
* 2 Redfield on Wills, 206; Bryan's Ex. v. Thompson's Adm. 6 J. J. Marsh. 586.
same manner as if it had been given to them as trustees under an ordinary trust; and the concurrence of all the trustees is necessary to transfer the legal title." Where executors are charged with the execution of a power coupled with an interest, the tenure of their holding is like that of ordinary trustees having a similar power. They take and hold as jointtenants. If some renounce, those who accept take the whole as if they only had been named; and if one of those accepting die, the survivor succeeds to the interest and executes the power with which it is coupled. If co-executors take a residue in that character, they become joint-tenants with the right of survivorship.3
'Hertell v. Bogart, 9 Paige, 58; Smith v. Whiting, 9 Mass. 334.
* Perry on Trusts, sec. 414.
3 Frewen v. Relfe, 2 Bro. C. C. 220; Baldwin v. Johnson, 3 Bro. C. C. 455; Griffiths v. Hamilton, 12 Ves. 298; White v. Williams, 3 V. & B. 72; Knight v. Gould, 2 Mylne & K. 299, 303; Flanders v. Clarke, 3 Atk. 509; S. C. 1 Ves. Sr. 9.
THE HOMESTEAD AS A JOINT-TENANCY.
Revival of Joint-Tenancy by Homestead Laws, § 47.
Resembles Tenancy by Entireties, § 49.
General Nature of Homestead Estates, § 50.
Homestead not ordinarily a Cotenancy, § 51.
Interest of Wife when Homestead is not a Cotenancy, § 52,
Interest of Wife how regarded in Iowa, § 53.
Homestead in Lands of a Cotenancy, § 54.
Homestead may be acquired in any title or interest in Severalty, § 55.
Homestead embraces Title subsequently acquired, § 56.
Homestead embraces Title subsequently acquired, § 57.
Limit of, § 59.
Partition of, § 60.
Survivorship in, § 62.
847. Joint-Tenancy revived by Homestead Laws.In most of the States, laws have been enacted exempting from execution and forced sale a certain quantity of land, with the improvements thereon, used and occupied by the judgment debtor as a home for himself and family. Usually, the property so exempted is further secured as a home for the family by provisions requiring the joint concurrence of the husband and wife in its encumbrance or alienation. At the death of the husband, the property retains its homestead character for the benefit of his widow and children. In the States where these enactments have been made, the property by them protected from seizure and forced sale, and consecrated as a home, is spoken of as a homestead, and the new interest created by law in this property is known as the homestead estate. While joint-tenancy, as it existed under
the common law, has, by operation of statutes in most of the States, fallen into general desuetude, it has, in some others, been annexed as an incident to every estate held by husband and wife as a homestead. In those States, the importance of the law of joint-tenancy has been partially revived. For as a very large proportion of property is dedicated as homesteads, it therefore happens that joint estates are of frequent occurrence-more frequent perhaps than when joint-tenancy was most favored at common law. We shall therefore proceed to consider the homestead as a cotenancy; but only so far as to show in what States it is treated as a new and joint estate, and what, where it is so treated, are the peculiar relations and powers of the cotenants thereof.
248. In California, the tenure by which husband and wife hold their homestead is clearly defined. Section one of the Homestead Act of that State, as amended in 1860, provided that, from and after the filing and recording of the declaration, "the husband and wife shall be deemed to hold said homestead as joint-tenants; and all homesteads heretofore appropriated and acquired by husband and wife under the act to which this is amendatory, shall be deemed to be held by such husband and wife in joint-tenancy.' The provisions of this section were adopted as part of the homestead law of the State of Nevada,2 and of the Territory of Idaho.3 The Civil Code of California reenacted the substance of the former statute, leaving the present law of that State, upon this subject, in the following form: "From and after the time the declaration is filed for record, the land therein described is a homestead; and if the declaration was made by a married person, the land is thereafter by the spouses held in jointtenancy, and on the death of either of the spouses, and subject to no other liability than such as exists or has been created under the provisions of this title, at once vests in the survivor."4
249. Resembles Tenancy by Entirety.-In the Territory and States named in the preceding section, the homestead
Hittell Gen. Laws, sec. 3541; St. 1860, 311. 3 Gen. Laws Idaho, 1863-4, 575.
Comp. Laws, Nev., 60-61; St. 1865, 225. + Sec. 1265 Civil Code.