The exceptions of the appellants in this appeal are founded, for the most part, on the supposition and expectation that this Court will overrule the case of Stancell v. Gay, 92 N.C. 455, disregard the judgment in that case and treat it as a mere nullity. We are not in the least inclined to do so. No good reason is assigned why we should. On the contrary, further scrutiny and reflection serve to strengthen our conviction of the correctness of the decision in that case, and it must remain undisturbed. Acts 1868-69, ch. 113, sec. 96; Bat. Rev., ch. 45, sec. 147; The Code, sec. 1525; Staley v. Sellars, 65 N.C. 467; Bumpass v. Chambers, 77 N.C. 357;Houston v. Howie, 84 N.C. 349; Johnson v. Futrell, 86 N.C. 122; Leachv. Railroad, 65 N.C. 486; Little v. McCarter, 89 N.C. 233; Peoples v.Norwood, 94 N.C. 167.
The exceptions, other than those disposed of by what we have just said, are immaterial, inasmuch as we are of opinion, the grounds of which we will presently state, that the administrators cum testamento annexo of the will of Green Stancell, deceased, had no power or authority to sell the land of their testator.
It appears that Green Stancell died in January, 1862, leaving a last will and testament, without appointing any executor thereof, which was proven in the proper court, and thereafter, on 3 March, 1862, (219) Samuel T. Stancell and Lewis D. Gay were appointed administrators cum testamento annexo of that will, and they qualified as such. By it the testator disposed of a large estate, both real and personal. It contains nine clauses, seven of which dispose of slaves only, and the following is a copy of the eighth and ninth clauses:
"Item. It is my will and desire that all my landed estate shall be sold, and that the proceeds of sale shall be equally divided among all of my children (my grand-children, S. T. and M. D. Long, to have one share).
Item. I wish all of my perishable property to be sold to the best advantage, and the proceeds of sale, together with what money I have and is due me, shall be equally divided among my heirs." *Page 195
Professing and purporting to act under and in execution of the first of these clauses of the will, and the statute (Rev. Code, ch. 46, sec. 40), taken in connection therewith the administrators named undertook, on 22 December, 1862, to sell the real estate of their testator, and to execute deeds of conveyance to the purchasers at the sale thereof sufficient to pass the title of the land to them respectively.
The appellees contend that such sale and deeds of conveyance were absolutely void, upon the ground that neither the will nor the statute, nor the will and the statute cited taken together, conferred upon these administrators power to sell the land of their testator.
The inheritance descended to the heirs-at-law of the testator, subject to be divested when the land should be sold as directed in the clause of the will first above recited, because he did not devise or dispose of it as land to any person — he simply directed that it be sold, without saying who should sell it, and that the proceeds of the sale be equally divided among all his children named, two of his grand-children to take one share. Wood v. Sparks, 1 D. B., 389; Ferrebee v. Proctor, 2 D. B., 439.
The testator failed to appoint an executor of his will, but if he (220) had done so, in the absence of some statutory provision allowing him to do so, such executor could not have sold the land, because at common law he had nothing to do with the real property of the testator, and he could not have authority to sell it, unless it had been devised to him to be sold, or unless the will conferred upon him power to sell it, and this appeared expressly or by reasonable and just implication from what appeared in the will itself. Foster v. Craige, 2 D. B. Eq., 209.
In this case the will conferred no authority in terms nor by implication on the executor, if one had been appointed, to sell the land. It was not to be sold, nor was it necessary to sell it, to pay debts of the testator, nor was it to be applied or disturbed in the ordinary course of the duties of the executor; nor were the proceeds of the sale directed to constitute any part of a common fund to arise from the sale of real and personal property to be distributed or administered by the executor, if one had been appointed. On the contrary, one distinct clause of the will directed a sale of the land, and another directed a sale of the personal property, the two distinct funds to be so raised to be distributed as directed in the will. There is nothing in the will that suggests that the executor, if one had been appointed, should sell the land.
Nor was there any statutory provision prevailing at the time the will took effect that would have allowed an executor of it to sell it. That cited above (Rev. Code, ch. 46, sec. 40), did not confer such power. *Page 196 It provided that "when part of the executors of any person making a will of lands, to be sold by his executors, die or refuse to take upon them the administration; or when all the executors die, or refuse to take upon them the administration; or when there is no executor named in a willdevising lands to be sold, or to be sold by executors; in every such case, such executors as qualify, or having qualified, do survive, or the (221) administrator, with the will annexed, may sell such land," etc. As to executors, this provision embraces cases in which the will directs land to be sold, first, by executors, and part of them die, or refuse to take upon them the administration; secondly, in which they all die orrefuse to take upon them the administration; thirdly, in which the will directs the executor or the executors to sell the land, and none are appointed. No one of these classes embraces the case before us. As we have seen, the will did not direct the executors to sell the land, if one or more had been appointed, nor could they have done so, for reasons already stated. The purpose of the statute was to provide for executing the power to sell land in cases where the will directed the executors to sell it, and part or all of them would not or could not join in the execution of the power conferred upon them, and where the executor or executors were empowered to sell it, but none were appointed to execute the power. The object was to supply the absence of the executor or executors in cases where they were charged with the execution of a power to sell land of the testator. Hester v. Hester, 2 Ired. Eq., 330; Smith v. McCrary, 3 Ired. Eq., 208.
It was no part of its purpose to authorize the administrator, cumtestamento annexo, to execute a power the executor could not execute, if he were living; he could execute such power only in the cases where the executor or executors were all dead, and where the executor or executors were empowered to sell the land, and none were appointed to execute the power. It is not probable, nor to be merely inferred, that the Legislature intended that the administrator should execute powers not conferred upon the executor. This would, in effect, be to create a power and have it executed not created or contemplated by the testator. Moreover, when the will simply directs the sale of land, it descends to the heir, and the legal implication is, that he shall execute the power, if need be, (222) under the superintendence and direction of the proper court. Foster v. Craige, supra.
It is suggested that one clause of the statute recited above, declares, in terms, that "where there is no executor named in a will devising lands to be sold, or to be sold by executors," the administrator shall execute the power. In view of the connection of this clause, the inconvenience and evil to be remedied — its extent and nature, and the clear purpose *Page 197 of the statute, the fair and reasonable interpretation of it is, that it is, to some extent, elliptical, and that, in effect, it should be taken as if it read, in terms, thus: "Or when there is no executor named in a will devising lands to be sold (by the executor), or to be sold by executors." If this is not the correct interpretation, then the case, where land was devised to be sold by the executor, and none was appointed, was not provided for, while the other cases were provided for with care and precision. If the purpose of the statute was to give the administrator authority in all cases to execute the powers of wills directing lands to be sold, in which no executor was named, then wherefore were the words, "or to be sold by executors," used at all in the clause just mentioned? Were these words inapt, pointless, mere surplusage, and intended to serve no purpose? This is not at all probable.
In adverting to the statute under consideration in Vaughn v. Farmer,90 N.C. 607, the Chief Justice said: "It is true the amendment confers the power when no executor is named in a will devising lands to be sold, or tobe sold by executors; but a larger operation given to these words than those used previously, which vest the power in a part of the executors, when the will directs land to be sold by executors, would result in the bestowal of more power upon the administrator than could be exercised by the executors, and this cannot be deemed the meaning of the law." The like view was expressed in Council v. Averett, 95 N.C. 131.
It thus appears that if the testator had appointed executors (223) of his will, they could not have executed the power to sell the land therein directed to be sold, and, therefore, the statute did not confer upon the administrators, cum testamento annexo, authority to sell it, and the sale thereof which they undertook and purported to make was inoperative and void.
Both the plaintiffs and defendants appealed. This is the plaintiffs' appeal from so much of the judgment as overruled certain of their exceptions to the report of the referee. As to these exceptions the judgment must be affirmed, and it must be modified in accordance with this opinion, and what is said and decided in the appeal of the defendants in the same case. To that end let this opinion be certified to the Superior Court according to law.
Affirmed.
Cited: S. c., 105 N.C. 481; Saunders v. Saunders, 108 N.C. 331;Farabow v. Green, ibid., 343; Gay v. Grant, 116 N.C. 100; Wool v.Fleetwood, 136 N.C. 467; Speed v. Perry, 167 N.C. 129; Broadhurst v.Mewborn, 171 N.C. 402. *Page 198