FOSTER v. GOREE, 4 Ala. 440

ORMOND, J. Two questions are made at the bar. First, was it necessary that the trustee, who, by the terms of the deed, the cestui que trust was permitted to substitute for the original trustee, on his failing to act, should be appointed by writing. Second — Was the power of appointment exhausted by the first appointment. These questions are to be answered by the intention of the parties as expressed in the deed.

When power to do any act is conferred on another, and the mode of its execution is defined, the power can be exercised only in strict conformity with the terms of the grant. [1 Sug. on Pow. 266.] When the power is conferred in general terms, it is an authority to do the act in any mode which the law would sanction or give effect to. In this case, the grant of power to appoint a trustee is in general terms, and as an authority to sell personal property may be given by parol, without writing, it follows that the parol authority conferred in this case was sufficient.

We are also of opinion that the power was not exhausted by the first appointment. The obvious intention of the parties was, that the deed should not fail for want of a trustee, and a trustee was as necessary to save the surety harmless against the second default as against the first, as therefore the power is not confined by the terms of the deed to the first default, we cannot presume such to have been the intention of the parties, as that would defeat the object in view in making the deed, and prevent it from being any security to the person intended to be benefitted by it.

The intention of the parties doubtless was, that upon the ■happening of any of the defaults mentioned in the deed, if the trustee appointed by the deed failed or refused to act, the cestui que trust might appoint one to act in his place. The power of appointment is given when the trustee fails or refuses to execute the trust. This certainly covers the entire deed, and embraces all defaults, unless it can be shown that the trust did not reach to all the defaults.

As, therefore, the deed does not provide that the power to appoint a trustee shall be extinct when once exercised, we cannot infer such to have been the intention of the parties, as it might be destructive of the object the parties intended to provide for. Let the judgment be reversed and the Gause remanded.