The wife's dower attaches to one mine, as well as several, and she is entitled to a division of the rents and profits;1 but where the husband possessed several different mines it is not necessary that each mine should be divided, but it is sufficient to assign such a number of them as may amount to one-third in value of the whole.2

§ 99. Sale by trustees. The rights and powers of trustees vary materially with the nature and terms of their trust and their rights and powers are either limited by the instrument creating the trust, or by the court in such a manner as to carry out the purposes of the trust. If the power of the trustee involves the exercise of a proprietary authority over the property, equity regards him as the owner, so far as it is necessary for the performance of the trust,

891. See, however, under Texas statute, Higgins Oil Co. v. Snow (113 Fed. Rep. 433), holding that a right of dower gives a right to open and work every kind of mine on the property.

1 Stoughton v. Leigh, 1 Taunt. 402; Moore v. Rollins, 45 Me. 493; Hendrix v. McBeth, 61 Ind. 473; 28 Am. Rep. 680; Lenfers v. Henke, 73 Ill. 405; Billings v. Taylor, 10 Pick. (Mass.) 460; Coates v. Cheever, 1 Cow. 460; Rockwell v. Morgan, 2 Beav. Ch. (N. J.) 384.

2 Stoughton v. Leigh, 1 Taunt. 402. "Dower of mines may be assigned either severally or collectively with other lands; by metes and bounds if practicable, and if not, then by an apportionment of the profits, or by assigning its enjoyment to the widow for short alternate periods. "Coates v. Cheever, 1 Cow. 463." M. M. D. 83, 84. "The profits of coal works on parcel of the deceased's lands must be considered in the assignment of dower to the widow; and if the land containing the coal work be collusively allotted to the widow, without consideration of the coal work thereon, a new a-signment of dower will be awarded." Hoby v. Hoby, 1 Vernon, 218. M. M. D. 84.

3 2 Washb. on R. P. 483; Tiedeman R. P. 513; 2 Pom. Eq. Jur. 991; Russell v. Lewis, 2 Pick. 508.

↑ Woodman v. Good, 6 Watts & L. 169; Trustees, etc. v. Stewart, 27 Barb. 553; Williams' App., 83 Pa. St. 377.

5 Beach v. Beach, 14 Vt. 28. The trustee is entitled to the possession. Tiedeman R. P. 513. And may oust the cestui que trust. Mordecai v.

Parker, 3 Dev. 425.

and to this extent the rights and powers of the cestui que trust are curtailed.1 As the successful operation of a mine would necessitate the exercise of such proprietary authority in the trustee, if at any time it should become necessary to sell the mine, in order to carry out the purposes of the trust, the trustee, in the absence of anything to the contrary, would have the implied power of sale. But he must always act for the best interests of the cestui que trust, and in exercising the power of sale, must use a reasonable discretion. If there is no prohibition against alienation the deed of the trustee would constitute a good conveyance,5

1 Ante, idem.

3

2 Bainb. on Mines, § 136; Brewster v. Sime, 42 Cal. 139; McNeil v. Acton, 22 L. J. Ch. N. S. 320; B. & W. L. C. 348-421; Tiedeman R. P. 513. "The mere fact that a person holding the legal title of stock and apparently having the right of disposition is styled 'trustee,' raises no implication that he has not authority to sell or hypothecate it in the usual course of business." Brewster v. Sime, supra, M. M. D. 384; Thompson v. Toland, 48 Cal. 99.

3 Brewster v. Sime, 42 Cal. 139; Cole v. Wade, 16 Ves. 28; Townsend v. Wilson, 1 B. & Ald. 608; Franklin v. Osgood, 14 Johns. 553; Wilbur v. Almy, 12 How. 180; Story's Eq. Jur. 1280. But see MacSwinney, p. 133.

4 Hargrave v. King, 5 Ired. Eq. (N. C.) 430; Irwin v. Harris, 6 Ired. Eq. 215. But courts will not usually interfere with a discretionary duty by a trustee. Morton v. Southgate, 28 Md. 41; Haydell v. Hurck, 5 Mo. App. 267. But see contra, 72 Mo. 253.

6

5 Ante, idem. Tiedeman R. P. 513, p. 410; Taylor v. Dickinson, 15 Iowa, 484; Story's Eq. Jur. 1280. "The mere addition of the word trustee' after the name of a person to whom stock is transferred, is not suffi cient to put persons dealing with the trustee upon inquiry as to the trustee's title, nor will it operate as constructive notice of the owner's equitable right. "Brewster v. Sime, 42 Cal. 139; Thompson v. Toland, 48 Cal. 99. M. M. D. 384. But a power to sell or convey in exchange will not enable trustees to sell the lands with an exception or reservation of the mines and minerals under them. Buckley v. Howell, 29 Beav. 546. Nor will trustees under a devise, to whom is given real estate in trust, to pay the rents, issues, and profits to one for life, and thus having the legal estate, have power during the life of such person to grant leases of mines. Scott v. Stewart, 27 Beav. 367; B. & W. L. C. 396 et sub.

and if there are two or more trustees all must join in the instrument of conveyance. But as a court of equity gives the cestui que trust the power to dispose of the estate, whenever it can do so, without violating the express or implied purposes of the trust,' it is always better to have the cestui que trust join in the instrument of conveyance, for when the deed is executed by the two together, it passes the absolute title to the estate and the trust is destroyed, on account of the consequent merger of

interests.3

§ 100. Sales by executors and administrators.-Whenever an executor or administrator comes into possession of mines of the deceased and is given no special instructions in respect to them, as the personal representative of the deceased he will have full power to dispose of them,1 aside from the rights that he would acquire therein by reason of the perishable and uncertain nature of the property. The executor or administrator, however, is not permitted, either directly or indirectly, to purchase at his own sale; but such a purchase may be made

6

"The deed of one of

1 Story's Eq. Jur, § 1280; Tiedeman R. P., § 513. several trustees of mines can convey no beneficial interest in the estate." Boston F. Co. v. Condit, 19 N. J. Ch. 394. M. M. D. 384. 2 Story's Eq. Jur., supra.

3 Tiedeman R. P., supra.

4 Bainbridge on Mines, 136; Wait's Acts. & Def. (Vol. 4), p. 430. But see Schouler, §§ 212, 509.

5 Ante, idem; Wetherill v. Seitzinger, 9 W. & S. 177; Garrett v. Noble, 6 Sim. 504. But see contra, Yahoola Min. Co. v. Feby, 40 Ga. 479; Estate Millenovich, 5 Nev. 184.

6 Bently v. Craven, 18 Beav. 75; Kimber v. Barber, L. R. 8 Ch. App. 56. He cannot derive a profit from the estate for himself. Coltrane v. Worrell, 30 Gratt. 434; Bough v. Walker, 77 Va. 99. "An executor, being also legatee, usurping a trust as to the working of his testator's colliery, may not make a profit out of the premises greater than would have accrued to him by the disinterested working of the premises under a trustee." Wightwick v. Lord, 6 H. L. Ca. 217. M. M. D. 384.

with the consent of those interested in the estate.1 The personal representative is not liable for any failure in quality or title, unless he can be charged with fraudulent representations, whereby the purchaser had been misled, and there is no implied warranty of title in sales by executors and administrators, and if the personal representative should give an express warranty of title or quality, the warranty would bind the personal representative and not the estate. In the absence of judicial orders, the sale must be made at public auction, but in many of the States statutes have been passed governing sales by executors and administrators, and these officers are obliged to obey the instructions of the court as to the form and manner of sale. But the general powers of executors, where restricted by statute, may be enlarged by an express power of sale given in the will," and even where the

1 Dilinger v. Kelly, 84 Mo. 561. But see Harper v. Mansfield, 58 Mo. 17; and Mitchell v. McMullen, 59 Mo. 252.

2 Tiedeman R. P., § 756, and cases cited; Turpin v. Chesterfield Coal & Iron Co., 82 Va. 74.

3 Bisp. Prin. Eq., § 237, p. 300; Hill on Trustees, § 158; Coles v. Trecotkick, 9 Ves. 234; Smith v. Townsend, 27 Md. 368; Diller v. Brubaker, 2 P. F. Sm. 498; Wheeler v. Bell, 26 M. A. 443.

Turpin v. Chesterfield Coal & Iron Co., supra; Fogle v. Brubaker, 122 Pa. 7; 22 W. A. C. 349; 15 Atl. Rep. 692.

5 Lockwood v. Gilson, 12 Ohio St. 526; Stoudemueller v. Williamson, 29 Ala. 558; Bishop on Con., §§ 1252-53.

6 Wait's Act. & Def. (Vol. 3); Tiedeman on Sales, 268; Evans v. Chew, 71 Pa. St. 47; In re Gorman, etc., 50 Mo. 179

R. S. Mo. 1899, Chap. I.

s Apel v. Helsy (Ark.), 12 S. W. Rep. 703. But a sale in compliance with an order of the Probate Court is valid; ante.

9 Valentine v. Wyser (Ind.), 7 L. R. A. 788; 123 Ind. 47; Logan v. Glover, 77 Tex. 448. But see Watson v. Sutra (Cal.), 24 Pac. Rep. 172. A direction in a will that the testator's trade (mining under a lease) shall be carried on, does not of itself authorize the employment in the trade of more of the testator's property than was employed in it at his decease; nor does such a direction, coupled with a direction that the testator's debts shall be paid, authorize a mortgage of his real estate not employed

sale is made in violation of judicial or statutory instructions, if based on a valuable consideration and made in good faith, the purchaser will get a good title 1 and other persons interested in the property cannot complain as to the manner and form of sale.2

3

§ 101. Partition of mines. Cotenants in a mine have the unrestricted right to alienate their their shares in the common estate, and it is possible for them to make partition of the estate by mutual conveyances to each other of their shares in different parts of the estate. And

at his death in the trade for the purpose of carrying it on. McNeillie v. Acton, 4 De G. M. & G. 744; 23 L. J. Ch. 11; reversing in part s. c. 22 L. J. Ch. 820; M. M. D. 104.

1 Tiedeman on Sales, supra; Carroll v. Conley (S. C.), 31 N. Y. L. R. 716; N. Y. Supp. 865; Scholl v. Almstead (Ga.), 11 S. E. 541; Woodworth v. Root (C. C. D. Neb.), 40 Fed. Rep. 723.

2 Drumheller v. Hoff, 23 Mo. App. 161.

3 Bainb. on Mines, 116; Collier, Secs. 5-12; Rockwell on Mines, Secs. 47-49. "As a mere question of right, distinguished from a question of practicability, partition may be made of mine as of other real property, but a mere license to mine cannot be the subject of partition. Canfield v. Ford, 16 How. Pr. 473; Adams v. Briggs Iron Co., 7 Cush. 365." Blanchard & Weeks Ld. Cas., p. 326. “The mere fact that a mining claim is owned and worked by several persons as partners, is no valid objection to a partition of the same between the owners where the answer does not set up, and it is not shown, that a suit in equity is necessary to settle the accounts and adjust the business of the partnership; and all the material allegations in a complaint for a partition of real property, which are not denied by the answer, are deemed admitted for the purposes of the trial." Hughes v. Devlin, 23 Cal. 501; B. & W. L. C. 311. M. M. D. 26. As to agreements running with the land, forming partition, see Coleman v. Coleman, 19 Pa. St. 100; Coleman v. Blewett, 43 Id. 178; Coleman's App. and Grubbs' App., 62 Pa. St. 252; B. & W. L. C. 275. "But mines in land when opened, are, from their nature, indivisible, and neither partition can be made at law nor dower assigned by metes and bounds. The only partition that can be made is to order a sale and divide the proceeds." Lenfers v. Henke, 73 Ill. 405; M. M. D. 255; Adams v. Briggs Iron Co., 7 Cush. 361.

Ante, idem. As to voluntary partition, see Tiedeman on Real Prop