# Cooley v. Kelley > Indiana Court of Appeals · December 8, 1911 · 52 Ind. App. 687 URL: https://www.frixlaw.com/law-library/cases/7066182 ## Case - **Full name:** Cooley v. Kelley - **Court:** Indiana Court of Appeals - **Decided:** December 8, 1911 - **Citations:** 52 Ind. App. 687; 96 N.E. 638; 1911 Ind. App. LEXIS 249 - **Precedential status:** Published - **Opinion:** On rehearing by Adams - **Judges:** Adams - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7066182 ## Opinion text On Petition for Rehearing. Adams, P. J. In her petition for rehearing, appellant, while not disputing the general rule that a power coupled with an interest will survive, insists that the power given by section six of the will of William H. Harper to his trustees was one of special trust and confidence in them as individuals, and not a power committed to them by virtue of their office. 16. The case of Dillard v. Dillard (1899), 97 Va. 434 , 34 S. E. 60 , is pressed on our attention, and is in point, assuming that the above construction of the will is true. In that case it is held that a power conferred on three trustees, without' words of survivorship, and involving personal confidence, was one that could only be exercised *702 conjointly, and that on the death of one of the trustees the authority would be determined. In support of this proposition, the case of Cole v. Wade (1807), 16 Ves., Jr., *27, with others, is cited, and is in point. In that case, the Master of Rolls said: “I conceive, that, wherever a power is of a kind that indicates a personal confidence, it must prima facie, be understood to be confined to the individual, to whom it is given; and will not except by express words pass to others, to whom by' legal transmission the same character may happen to belong.” This case was determined by the High Court of Chancery in 1807, and almost a century latex-, the same court (In re Smith [1903], 73 L. J. 74) overruled Cole v. Wade, supra, and held that the general principle would be applicable if it had been followed and adopted by the later cases. The court further said: ‘ ‘ The principle, however, is open to the criticism that it is expressed in loose and general terms. All, or nearly all, powers xieeessitate, the personal confidence of the testator in the doxxees thereof, and it is very difficult to draw the line — for example, powers of leasing, and selling and investing, powers of nxaintenance and advancement of children, all require the exercise of discretion, but the principle could hardly be applied to thexn. I find it impossible to formulate any rule by which the court can say that certain powers are, and others are not, of sxxeh a nature that they must necessarily be given only to individuals known to the testator. There is no standard of measurement, but the more or the less becomes a mere matter of conjecture, affording no basis for judicial determination.” The court reviews a number of cases and concludes: “ Every power given to trustees, which enables them to deal with ox-affect the trust property is prima facie given to them ex officio as axx incident of their office, axxd passes with the office to the holders or holder thereof for the time being. Whether a power is so given ex officio or not depends in each case on the construction of the document giving it; but the mere fact that the power is one requiring the exercise of a very *703 wide personal discretion is not enough to exclude the prima facie presumption, and little regard is now paid to such minute differences as those between ‘my trustees,’ ‘my trustees, A and B,’ and ‘A and B my trustees.’ The testator’s reliance on the individuals to the exclusion of the holders of the office for the time being must be expressed in clear and apt language. ’ ’ Hadley v. Hadley (1897), 147 Ind. 423 , 46 N. E. 823 , the only Indiana ease wherein the question of powers has been considered, followed the rule laid down by Washburn, that where the power is coupled with an interest the presumption is that it was meant to survive. It also appears from the latest expression of the High Court of Chancery that the rule of presumption in cases of this kind has now been changed in England, and that where a power is given to trustees, it is prima fade by .virtue of their office. To overcome such presumption requires the use of clear and apt language in the instrument creating the trust and conferring the power. No such language is used in the will of William H. Harper. As the donees of the power hold the same ex officio, and no words are used importing a contrary intention, the power was one that would survive, and could be lawfully exercised in this case by the two surviving trustees. Rehearing denied. Note. — Reported in 96 N. E. 638 , 98 N. E. 653 . See, also, under (1) 31 Cyc. 350; (2) 3 Cyc. 181; 38 Cyc. 1976; (3, 4) 38 Cyc. 1990; (5) 23 Cyc. 866, 868; (6) 3 Cyc. 244; (7) 23 Cyc. 1545; (8) 23 Cyc. 1546; (9) 29 Cyc. 759; (10) 23 Cyc. 1546; (11) 23 Cyc. 1246; (12) 16 Cyc. 1084; (13) 40 Cyc. 1809; (14, 15, 16) 40 Cyc. 1834. As to the effect of judgments of sister-state courts, see 2 Am. Dec. 42 ; 103 Am. St. 304. As to what are collateral attacks upon judgments, see 23 Am. St. 104. As to the effect to he given a power coupled with an interest, see 110 Am. St. 860. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7066182. Public record. Not legal advice.