The exceptions to the conclusions of law, assigned by appellant as errors in the judgment below, raise several questions — the primary one being whether the powers vested in the executrix and the executor, or the survivor of them, under the provisions of the will of J. C. Welch, Sr., are personal to, and discretionary with them. If so, whether such powers may be exercised by an administrator de bonis non, cum testamento annexo. As to these the ruling of the court below seems to be in accord with pertinent legal principles.
The powers of an executor, or trustee, are personal in their relation to him when the testator or trustor manifests an intention that, under no circumstances, should such powers be exercised by anyone else. 54 Am. Jur., 221, 232, Trusts, sections 281, 292. Whether the powers are personal in character is to be ascertained from a consideration of the will as a whole, and from the nature and objects of the trust created thereby, in the light of surrounding circumstances. 54 Am. Jur., 231, 232, Trusts, sections 291, 292.
*364The powers of an executor, or trustee, are discretionary when they cannot be duly exercised without the application of a certain degree of prudence and judgment. Black’s Law Dictionary. If the executor, or trustee, can decide to exercise or not to exercise, within his discretion, powers given to him, the powers are discretionary. 54 Am. Jur., 231, Trusts, section 290.
Thus when the provisions of the will of J. C. Welch, Sr., are considered in the light of these principles of law, it is clear that the powers conferred upon the executrix, his wife, and the executor, his son-in-law, in whom he was well pleased, or the survivor, are personal to them, and to be exercised in their discretion. The provisions directing (1) that in the management of his estate his executrix and his executor or either of them “shall improve or sell all of the unproductive real estate in their, his or her sound discretion, and with the proceeds from such sale either improve such real estate as seems best or invest same in Government Bonds,” and (2) “that all personal property . . . shall be invested in Government Bonds or in the improvement of my estate,” coupled with the expressed intention and direction “that my estate be managed as above outlined during the life or lives of my executrix or executor and at the death of either of them that the powers herein enumerated shall be exercised by the survivor,” and that “at the death of both my executrix and executor, it is my desire and I do direct that my estate be divided, etc.,” indicate the testator’s personal confidence in the sound judgment and discretion of his named executrix and executor, or of the survivor, and his trust in their exercise of the discretionary powers enumerated, but to continue only so long as the survivor should live.
And it is a general rule of law that purely personal and discretionary powers of an executor or trustee cannot be exercised by a substitute or successor, nor can a court appoint another in the event of the death, incompetency, or other failure of the designated person. 54 Am. Jur., 106, 221, Trusts, sections 122, 281. Re Doe’s Will, 232 Wis., 34, 285 N. W., 764, 126 A. L. R., 926. This principle is recognized in this State by opinions in these cases: Young v. Young, 97 N. C., 132, 2 S. E., 78; Creech v. Grainger, 106 N. C., 213, 10 S. E., 1032; McAfee v. Green, 143 N. C., 411, 55 S. E., 828; Trust Co. v. Drug Co., 217 N. C., 502, 8 S. E. (2d), 593.
In the Young case, sufra, this headnote epitomizes the principle, “Where a power is to be exercised entirely at the discretion of the donee of the power, courts of equity have no jurisdiction to force him to act, and if he has died without exercising the power, they cannot confer it upon a trustee appointed by the court.”
Also, in the Creech case, supra, the Court held that trusts personal to and discretionary with the executor became extinct at his death, and *365could not be judicially prolonged and vested either in the administrator c. t. a. or in a substituted trustee.
And in the Trust Co. case, supra, the Court held that the power given to an executor, exercised as such or only as trustee, in the event of death or removal of trustee, passes by virtue of statutes — (now G. S., 28-24, and G. S., 28-97) — to and is exercisable by the administrator with will annexed, “unless it clearly appears that the executor named is made the donee of a special trust, given by reason only of peculiar or special confidence in him, or that the testator by the language of the will definitely limited the exercise of the power to the person named as executor.”
Therefore, in the present case, the executrix having died, and the surviving executor having been removed for cause, the personal confidence imposed by the testator had run its course and spent its force, just as effectively and completely as if the survivor had died, and the trust created came to an end.
Appellant next challenges the ruling of the court that the death of Ruth Welch, one of the devisees and beneficiaries under the will of J. C. Welch, had the effect of terminating the trusts in item's three and four as to her share and interest in the estate, and that such share vested in her surviving brother and sisters. However, it is conceded in brief of appellant that if the removal of the surviving executor had the effect of terminating the trust, and that consequently the time has arrived for dividing the estate as directed in the will, the second conclusion of law, and the portion of the judgment based thereon, are correct. Nevertheless, see Baker v. McAden, 118 N. C., 740, 24 S. E., 531; and Fisher v. Fisher, 218 N. C., 42, 9 S. E. (2d), 493. The Baker case, supra, is very similar to the one in hand. There the Court held that the death of a beneficiary terminated the trust as to her share in the estate. And in the Fisher case, supra, it is held that in such event, there being no limitation over, title would descend to heirs at law of the beneficiary.
Lastly, the appellant challenges the correctness of the third conclusion of law which holds that the portion of the Ruth Welch share of the J. C. Welch estate, which her sister Allie Welch Eoister inherited from her, is not affected by the provisions of the trust which J. 0. Welch, Sr., set up in his will for Allie Welch Eoister, and that she, Allie Welch Eoister, is entitled to receive same freed and discharged of the provision of the trust so set up by J. 0. Welch, Sr., in his will. A reading of the will clearly shows that the trust set up by him for his daughter Allie Welch Eoister is well defined, and that in no view does it affect anything Allie Welch Eoister takes from her sister by inheritance.
The judgment is
Affirmed.