DURION V. CONNELLY
92 A. 906 (Ch. 1915)

PROCEDURE: Complainant seeks a decree for the specific performance of a contract wherein defendant, Roberta Connelly, as executrix and trustee of her deceased husband's will, agreed to convey to complainant certain real estate in Atlantic City.

FACTS: The testator's will authorized the executor to sell real estate and to invest the proceeds at her discretion She contracted to sell the land for $45,000 to be paid $5,000 in cash, $16,000 by proceeds of a bank loan secured by first mortgage and $24,000 by note secured by a second mortgage to her as executor The executor refused to perform alleging lack of power to do so The purchaser filed a bill for specific performance

ISSUE: Does the mere power of sale given to a fiduciary carry with it the power to arrange terms of postponed payments of price?

RULE OF LAW: The mere power of sale given to a fiduciary does not carry with it the power to arrange terms of postponed payments of price

HOLDING & ANALYSIS: Where the beneficiaries are not parties to the bill, equity will not decree specific performance of an executrix's contract to sell land, when such action would, in effect, be forcing her to invest $24,000 of trust funds in a second mortgage on land on which only $16,000 can be raised in the market on first mortgage. A court of equity cannot decree specific performance of a contract to sell trust land by an executrix, where by the terms of the will such executrix has no power to perform her contract. A naked power to sell under a trust instrument does not include authority to arrange terms of postponing payment of the price, or to accept a mortgage or anything other than money in payment.