tified or warranted by the exercise of the police power of the state. He admitted the difficulty of determining what objects fell within the police power, but was of the opinion that the power could not be extended so as to prevent the disposition of property in any manner which the owner saw proper, if the disposition did not endanger the public safety, peace, health, or happiness. The statute in question, he insisted, embraced all sales of merchandise otherwise than in the ordinary course of trade in the general and usual prosecution of the seller's business, whether he was solvent or insolvent, and whether he acted in good faith or for a fraudulent purpose, unless notice was given, as in the act required, and that the result of this was to compel every merchant, whether solvent or insolvent, to obtain the consent of al his creditors before he could close out his business for any purpose or at any price. He relied upon section & of article 1 of the constitution of the state, declaring that "no man shall be taken or imprisoned, or disseised of his freehold, liberties, or privileges, outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the judgment of his peers or the law of the land," and insisted that, while the effect of the statute was not to take away property, it did restrict and burden a merchant's property in such a way as to prevent its free transfer and the realization of its value, thereby taking away one element of its value, namely, the right to use and legitimately dispose of it.

A Statute very similar in its terms to the one passed upon in the principal case is pronounced constitutional in McDaniels v. J. J. Connelly Shoe Co., 30 Wash. 549, 94 Am. St. Rep. 889, 71 Pac. 37.

MATTHEWS v. CAPSHAW.

[109 Tenn. 480, 72 S. W. 954.]

POWERS OF SALE-Special, How Must be Pursued.-Where a special power of sale is given, to be exercised only on the happening of a certain event, it can be executed only in the mode, at the time, and upon the conditions prescribed in the instrument creating it, and the purchaser must, at his peril, ascertain whether the contingency upon which the sale is authorized existed. This rule applies only where the condition upon which the power is to be exercised is upon the happening of a certain event or independent fact, which may be ascertained by anyone with equal certainty. (pp. 856, 857.)

POWERS OF SALE.-Where the condition upon which a power of sale is to be exercised is such that the determination, whether it has been fulfilled or not, requires the exercise of judgment and discretion, as to which there may be an honest difference of opinion, the decision of the donee of the power, in good faith and without notice to an innocent purchaser, will not be set aside, though it may afterward appear that his judgment was erroneous. (p. 857.)

IF A POWER of Sale is to be Exercised if a Necessity for so Doing Arises, the judgment of the donee of the power as to the necessity is conclusive in the absence of fraud. (p. 859.)

POWER OF SALE.-Though a Power of Sale is not Exercised in Good Faith, the title of the purchaser is not thereby affected, unless collusion or guilty knowledge can be traced to him. (p. 859.) POWERS OF SALES Given in Wills Should Receive a Liberal Construction in order to carry out the purpose and intent of the testator. (p. 860.)

POWER OF SALE-Conveyance, When Deemed to be in Execution of.-Where the owner of a life estate is vested with a power of sale and executes a conveyance purporting to convey in fee, but without referring to the power, its exercise will nevertheless be presumed. No express recital of the power is required. (p. 861.)

Bryant & McBroom and F. T. Fancher, for Matthews et al. Algood & Finley and R. P. Capshaw, for Capshaw et al.

482 SHIELDS, J. Complainants, children and devisees of Lawrence Matthews, deceased, bring this bill to assert their title in remainder upon the falling in of the estate of their mother, Mrs. Agnes Matthews, for her own life, now outstanding, in certain valuable lots in 483 Cookeville, Tennessee, and to have declared void and inoperative a deed made by Mrs. Matthews, purporting to convey the property in fee to Simeon Hynds.

Lawrence Matthews made his will in 1860, and died in 1874, the owner of real and personal property including that in question, and leaving Agnes Matthews, his widow, and complainants (twelve in number), his children, surviving. His will was duly admitted to probate, and John F. Matthews and Mrs. Agnes Matthews, the executor and executrix, therein named, were qualified.

The first clause of the will is in these words: "1. If my wife, Agnes, should live longer than I do, I want, at my death, all of my just debts to be paid, and then I want my wife, Agnes, to have all my lands and negroes and effects during her life or widowhood, and that in case of necessity, I authorize my wife, Agnes, to sell any properties or lands or negroes, as same as I could for myself, for the benefit of the family." The other clauses contain some small bequests to certain of his children, and a special provision that all of his children shall be made equal in the distribution of his estate.

On November 5, 1877, Mrs. Agnes Matthews conveyed the property in controversy, for a valuable consideration in hand

paid, to Simeon Hynds, in fee, with formal covenants of seisin, good right to convey, and general warranty; and through several intermediate conveyances, purporting to convey in fee, made for 484 valuable considerations paid, and without notice of the claim now attempted to be asserted, the several defendants now have possession and claim title to the property. The deed to Simeon Hynds contains no reference to the will of Lawrence Matthews, or the power of disposition of his property therein given his wife.

At the time this conveyance was made Mrs. Matthews was in possession of some five or six hundred acres of land, and had some money and other personal property; but the condition of the estate of the testator and of the several complainants does not fully appear, save that the personal estate was evidently small, and the children had not been advanced equally. Mrs. Matthews who is now about ninety years of age, was examined as a witness, and testified that she sold the property because she thought she had the right to do so, and that she accounted for the proceeds in a settlement she made as executrix some nine years afterward. There is no charge of fraud or unfairness in connection with the sale and conveyance of the lots.

The complainants insist that the power of sale vested in Mrs. Matthews was a limited power, to be exercised only upon the happening of a certain contingency, and that she was not authorized to convey the property of the estate unless a necessity for such sale arose, and that, under the facts above stated, no such necessity existed when the sale was made to Simeon 485 Hynds, and, further, if a necessity did exist, the power given her was not exercised, since the deed contains no express recital that it was her intention to execute it, and the presumption is that she only intended to convey her estate for life, and for these reasons her conveyance was only effective to pass her life estate; that they are the rightful owners in the remainder of the fee to the property; and they bring their bill to have this adjudged and the conveyance of Mrs. Matthews, so far as it purports to convey the fee, declared a cloud on their title, and removed.

The general rule of law, unquestionably, is that, where a special power of sale is given, to be exercised only upon the happening of a certain event, made a condition precedent, it can be executed only in the mode, at the time, and upon the conditions prescribed in the instrument creating it, and the purchaser must, at his peril, ascertain whether the contin

This rule is

gency upon which the sale is authorized exists. recognized and adhered to by this court in all cases proper for its application, and it is not necessary to cite authorities to sustain it. But the rule only applies where the condition upon which the power is to be exercised is upon the happening of a certain event or independent fact, such as majority or marriage of someone named, which may be ascertained by anyone with equal certainty. It does not apply and is not the law where the condition is such that the determination whether it has been fulfilled, or not, requires 486 the exercise of judgment and discretion as to which there may be an honest difference of opinion; and in cases of this character the decision of the donee of the power is conclusive of the question, and a sale made in pursuance of the power, in good faith or without notice to innocent purchasers, will not be set aside, although it may afterward appear that the judgment of the donee was erroneous. This distinction is well established by the authorities.

Chief Justice McIver, of the supreme court of South Carolina, in a well-reasoned opinion in a case involving this question, said: "It is quite clear that the power of sale was a conditional one, and it is equally clear that the condition was, in its nature, precedent, and not subsequent, and that, such being the case, until the condition was performed or the contingency upon which the power was conferred happened, the power could not be lawfully exercised. So that the real question in this case is whether the contingency upon which the power to sell was given had happened at the time the sale was made, and, as subsidiary to this, who was to determine whether the contingency had happened. To solve these questions, it will be necessary to inquire what was the nature of the condition. Was it the happening of a distinct and indepedent fact, or was it a condition which, in its very nature, involved the exercise of judgment or discretion for the determination of whether it had happened, and about which, therefore, there might well be, as 487 there was in this very case, honest difference of opinion? It certainly was not a distinct and independent fact, as if the testator had provided that the executor should sell when a certain person should attain to a certain age, but it was a condition, the happening of which could only be determined by an exercise of judgment. When the value of property should recover from a depression caused by war or any other

special circumstance must necessarily be a question to be determined by the exercise of judgment-one about which persons might, and probably would, honestly differ. What was to be the extent of the recovery which would authorize a sale? Somebody must judge of this, and, if the executor is not permitted to do so, then it is difficult to suggest who could. If the executor commits an error of judgment in determining such a question, that certainly ought not to invalidate a sale made by him in the honest exercise of his judgment. If it did, then it will be impossible to tell, until after it was tested by a judicial proceeding, whether any sale made under such a power was valid; and, if such a rule be established, it would destroy all chances of making such a sale, for certainly no one would buy with the prospect of having his title inquired into and assailed years after upon the ground that the executor had committed an error of judgment in determining a question which was left to his discretion. . . . . When, therefore, as in this case, a power of sale is given to an executor upon the happening 488 of a contingency which can only be ascertained by the exercise of judgment and discretion, and the executor, in the honest exercise of his judgment, determines that such contingency has happened, and accordingly makes the sale, such sale cannot be invalidated, even though it should be made to appear, in the light of subsequent events, that the executor had committed an error of judgment in determining whether the contingency had happened upon which he was authorized to sell. If, however, it should appear that the executor erred willfully, or from such gross negligence as would imply willfulness, then it would be different, and the question whether the sale should be allowed to stand would depend largely upon whether the purchaser had notice of such misconduct on the part of the executor": Jennings v. Teague, 14 S. C. 238-240. Other authorities are in accord.

When the power of sale is conferred, to be exercised if a necessity for so doing arises, the judgment of the donee as to the necessity is conclusive, in the absence of fraud: Bunner v. Storm, 1 Sand. Ch. 357.

If the trustees exercise their discretionary power in good faith, and without fraud or collusion, the court cannot control or review this discretion: Perry on Trusts, sec. 511.

When a limited power of disposition is given, and the discretion of judging of the contingency is also conferred, and