Opinion
(June Term, 1839.)
A testator, after several devises and bequests, concluded thus: "The balance of my property to be applied to the payment of my just debts.
THE defendants, as the executors of the last will of Anderson E. (210) Foster, sold to the plaintiffs a tract of land belonging to the estate of the said Anderson, made a deed of bargain and sale for the same, and took a bond for the purchase money, upon which they afterwards obtained a judgment and issued execution at law. The plaintiff then filed this bill, and obtained an injunction restraining the collection of the debt, on the ground that the defendant had no power or right to make title to the said land. The will of Anderson E. Foster contained the following clause: "As to the disposition of my worldly estate, both real and personal, I make the following, viz.: Item, I give and bequeath to my sister," etc. The testator then proceeded to make several devises and bequests, and concluded the disposition of his estates thus: "The balance of my property to be applied to the payment of my just debts. Should there be a surplus, it is my will and desire that it be divided equally among the heirs of my deceased brother, Samuel Foster, and the heirs of David Craige." The defendants were appointed executors, and qualified as such. The testator was in debt about $15,000. The land sold was a portion of the balance of the testator's property not before devised or bequeathed by the will. The executors, in their answers, averred that they sold the land to pay the debts, and to distribute the surplus agreeably to the directions of the will. The case was heard in the Superior Court of DAVIE, on the last circuit, before NASH, J., on a motion to dissolve the injunction; and the injunction being dissolved, the plaintiffs appealed from this interlocutory order.
No counsel for plaintiffs.
Hoke, Alexander, and Boyden for defendants.
Should there be a surplus, it is my will and desire that it be equally divided among the heirs of my deceased brother, S. F., and the heirs of D.C.": It was held that as the "property" mentioned in the will was a mixed fund of real and personal estate, and was to be applied in the first place to the payment of debts, the executors had a power by implication to sell a tract of land not specifically devised, for the payment of debts and for distribution.
Where there is in the will a general direction to sell lands, but it is not stated by whom the sale is to be made, there, if the produce of the sale is to be applied by the executors in the execution of their office, a power to sell will be implied to the executors. Tylden v. Hide, 2 Sim. Stu., 288. The principle that a direction that lands shall be sold, generally (without saying by whom), for a purpose which brings the fund within the province (211) of the executors, as to pay debts or legacies or both, confers on them a power of sale by implication, is established by several cases. Inchly v. Robinson, 2 Leon., 145; Carvill v. Carvill, 2 Chan., 301; Lockton v. Lockton, 1 Cha. Cas., 179; Blatch v. Wilder, 1 Atk., 420; 1 Powell on Devises, 244 (Jarman's ed., note 4). If the testator had simply directed the distribution, among certain objects, of an unmixed fund arising from the sale of land only, then the heir alone could sell. Bentham v. Wiltshire, 4 Madd., 44. But in the case before us the fund is not only one that is mixed of real and personal estate, but is one for the payment of the testator's debts, and the surplus thereafter only to be distributed among certain objects. Tylden v. Hyde was a case where a mixed fund of real and personal estate was directed to be sold and converted into money, and the same to be distributed among certain objects. The vice-chancellor nevertheless said: "Here the produce of the sale is to be confounded with the personal property, which must necessarily be divided by the executors; and a power to sell is therefore implied to the executors." That the "property" which the testator directed to be applied to pay his debts included his undisposed of lands is evidently to be collected from what he has said in the other parts of his will. The word "property" is also equivalent to estate, in its operation to pass the interest in the land as well as the land itself; and land will pass in a will by either of the said words. Shell v. Patterson, 16 East, 221; Nicholls v. Butcher, 18 Ves., 194; Patton v. Randall, 1 Jac. Wal., 189; 2 Powell on Dev., 419 (Jarman's ed.). The testator does not, in so many words, direct a sale of the balance of his property; but he says it shall be applied to pay his debts. It cannot be applied in that manner without a sale. A sale is, therefore, ordered by the testator himself; and the executors had an implied power to convey. The deed executed by the executors conveyed what title the testator had in the land to the present plaintiffs. We are, therefore, of the opinion that the interlocutory decree in the Superior Court was correct. The (212) plaintiffs must pay the costs of the appeal.
PER CURIAM. Affirmed.
Cited: S. c., 37 N.C. 533; Smith v. McCrary, 38 N.C. 209; Brawley v. Collins, 88 N.C. 607; Vaughan v. Farmer, 90 N.C. 610; Gay v. Grant, 101 N.C. 220; Maxwell v. Barringer, 110 N.C. 82; Epley v. Epley, 111 N.C. 506; Herring v. Williams, 158 N.C. 20; Mewborn v. Moseley, 177 N.C. 113.
Dist.: McDowell v. White, 68 N.C. 67.