The plaintiff claims an undivided fourth part of the property as one of the devisees of his father Jacob Roseboom; and he claims an undivided twelfth part as one of the heirs at law of his sister Magdalena, who died in 1837. The defence is, that the title to the whole of the property passed by the deed of Mrs. Roseboom, the executrix, to Palmatier in 1805. In addition to this, the defendant relies on the assignment which the plaintiff made as an insolvent debtor in 1811, as an answer to the action so far as the plaintiff claims as devisee under the will of his father.
We will first notice the plaintiff’s proceedings as an insolvent debtor. Although the assignment was as general in its terms as the law under which it was made, (6 Web. 200,) I see no reason to doubt that it passed all the property which the plaintiff then owned, whether in possession or expectancy. If at that time he deemed himself the owner of this property, the omission to mention it in the inventory proves that he intended to defraud his creditors. But that wrong would not prevent the title from passing to the assignees for the benefit of creditors. The assignment is not confined, either in its,, terms or by the law under which it was made, to the property mentioned in the inventory. The language is broad enough to reach the whole of the debt- or’s estate of all kinds; and there is no ground, either in morals or public policy, for restricting its influence to narrower limits.
Had it been proved that all ,of the debts had been paid, without a sale of this property, there would then have been *68some ground for presuming that the assignees had re-conveyed to the plaintiff. But the mere lapse of time since the plaintiff parted with his title lays no foundation for such a presumption. And if the estate of the assignees might determine without a re-conveyance, that could only happen when the object for which the assignment .was made had been accomplished ; and there is no proof in the case that the debts have been paid. We can, therefore, neither presume a re-conveyance, nor say that the title of the assignees has been extinguished.
Although the defendant does not make title under the assignees, there is nothing in the case to preclude him from showing that the plaintiff has parted with all his interest in the property. The defendant did not enter under the plaintiff, nor under his title; nor is he an intruder into lands which were once in the possession of the plaintiff. .The plaintiff was never in possession. The defendant entered and holds as owner; and there is no reason why he should not be allowed to defend, if he can, on the general doctrine that in ejectment the plaintiff can only succeed upon the strength of his own title.
This disposes of the case so far as the plaintiff claims as one of the devisees in his father’s will. But his claim to a twelfth part of the property as heir at law to his sister Magdalena, who died after the insolvent proceedings, makes it necessary to en-quire whether the title passed by the deed of Mrs. Roseboom to Palmatier.
When no estate is devised to the executors, and they have a mere power to sell lands in case the personal estate shall not prove sufficiént to pay debts and legacies, there it may be that the purchaser must show a deficiency in the personal property, and so that a sale was in fact necessary. (Dike v. Ricks, Cro. Car. 335; W. Jones, 327, S. C.; Sugd. Vend. 449, 5th Lond, ed.; Butler's note 249, Sec. 12 to Co. Litt.) But here the executors were authorized to sell if. in their opinion it should become necessary to do so for the payment of debts, or the support of the wife and children. The power to sell, did not depend upon an actual necessity, but upon the opinion of the executors concerning the necessity; and in such a case I 'cannot think *69that the purchaser is bound to show a deficiency in the personal estate. No fraud is alleged; and if the executrix has erred in judgment upon a question which the testator referred to her decision, that cannot defeat the' title of the purchaser.
At the common law it was necessary to the due execution of such a power as this, that all of the executors should join in making the sale. But the statute of 21 Hen. 8, ch. 4, provided, that where part of the executors do refuse to take upon him or them the administration and charge of the will, a sale by those who do accept and take upon them the care and charge of the will shall be as good and effectual in the law as though all of the executors had joined. Although this statute in its letter only extended to a case where the executors had a power to sell, yet being regarded a beneficial law, it was extended by construction to the case of lands devised to executors to be sold. (Co. Litt. 113, a.) Our statute extends in terms to both classes of cases; and it provides also for the neglect, as well as the refusal, of one or more of the executors to take upon them the execution of the will. (1 Kent & Rad. 180, § 11.) If Mr. Van Vechten had renounced before the surrogate, or if, being cited, he had neglected to appear and take upon himself the execution of the will, and his default had been recorded by the surrogate, there would then have been no difficulty in the case. But is there no other way in which it may be shewn that he refused or neglected to act as an executor ? In England that seems to be an open question. I do not find that it has been decided either one way or the other. In Bonifaut v. Greenfield, (Cro. Eliz. 80, 1 Leon. 60, S. C.) it does not appear how the executor refused. Broke says, “ one of the four [executors] refuses to meddle with ¡he will or saleand Leonard ha? it, that “ one of the executors refused administration- of the will.” It has been said, however, that he had not renounced “ either by matter of record or by deed.” (Per Holroyd, J. in Townson v. Tickell, 3 Barn. & Ald. 31.) We have held that it was enough to show, that the executor who did not join in the sale had neglected to take upon him the execution of the will; and that this may be proved although there was no renunciation. (Sharp v. Pratt, 15 Wend. *70610. And see Jackson v. Ferris, 15 John. 346.) And it has been held by two highly respectable courts in sister states that the refusal need not be by deed, nor by matter of record ; but that it may be proved, like other matters in pais, by any evidence which has a legal tendency to establish the fact. Presumptions may be indulged; and the declarations of the executor who did not join in the sqle may be given in evidence. (Geddy v. Butler, 3 Munf. 345; Nelson v. Carrington, 4 id. 332; Den v. Sparks, 1 Dev. & Bat. 389.) These cases were decided on the 21 Hen. 8, ch. 4, which onlyprovides for a refusal of the executor to take upon him the administration and charge of the will; and it was held that the mere omission of the executor for a considerable period to qualify and enter upon his trust was sufficient prima facie evidence of the refusal. Our statute provides for the neglect, as well as the refusal, of one of the executors to act, which makes the case still stronger for receiving every species of common law evidence. Had the question been entirely new, I should have been inclined to the opinion that a formal renunciation by the executor, or a neglect to take upon himself the administration of the will when cited for that purpose was necessary to bring the case within the statute. But the question has been settled the other way. The judge was wrong, therefore, in telling the jury that there must be a renunciation or refusal in writing. But that was an error in the plaintiff’s favor, and of course he cannot complain.
It is no objection to this evidence that it touches the title to real property. Although the title to lands cannot be passed by parol, there are many cases where collateral facts affecting the title may be proved by unwritten evidence. It is so when a deed is impeached for fraud in the execution, or on the ground that it is a fraud upon' creditors. When the validity of a deed depends on the heirship of the grantor, the kindred, and the death of the ancestor, may be proved by oral evidence. And if the question be whether the grantor has survived the other donees of a power to sell, the fact that the other donees are dead may be proved in the same way. These are plain cases' about which no doubt can be entertained. The case in hand *71seems to be equally clear. If you may prove by oral evidence the survivorship of the grantor, I see no reason why you may not show in the same way that he is the only acting executor: or, if parol proof may be received to show that one of the donees of a power is dead, it must also be admissible to show that he has refused or neglected to assume the trust. You may not prove a conveyance of lands by parol; but collateral facts may be proved in that way, although they may either overthrow, or be necessary to give effect and operation to the deed.
As the plaintiff himself gave in evidence the declarations of Mr. Van Vechten, it is not necessary to inquire whether they would have been admissible if offered by the other party. And as to the comments which the judge made upon the weight and importance of the evidence, it is sufficient to say, that such comments, unless they amount to a misdirection in point of law, do not furnish a sufficient ground for ordering a new trial.
Immediately after the testator’s death in 1797, Mr. Van Vechten united with Mrs. Roseboom in executing one of the powers conferred on the executors by the will. They conveyed to Crane. Although this is but a single act, it undoubtedly furnishes very strong evidence that he had taken upon himself the general execution of the will. But I do not see that it is conclusive proof of that fact. It is quite possible that the signing of that deed is the only thirig which he ever did as executor. It is true that when we find him once acting as executor, the presumption is that he continued to act. But this is not a conclusive presumption. It may be met and overcome by other evidence. And there are several facts in the case which tend strongly to the conclusion that he did not take upon himself the general execution of the will. He never proved it, nor qualified as executor; nor is there any other trace in the surrogate’s office of his ever having acted as executor. In the deed to Crane, instead of the usual acknowledgement that the consideration money was paid to the grantors, it is carefully stated that the money was paid to Mrs. Roseboom. This fact goes to show, that while Mr. Van Vechten consented to sign a deed for the execution of this particular power, he did not intend to *72assume the general administration of the will. There is no proof that he ever acted after giving the deed to Crane, which was more than seven years before the executrix conveyed to Palmatier. And finally, the plaintiff has himself borne testimony to the fact, that Mr. Yan Yechten refused or neglected to execute the will. In 1822 he cited his mother to account before the surrogate as the sole acting executrix, alleging that she had received moneys from the real as well as the personal estate. It may be added, that his insolvent proceedings in 1811 furnish a pretty strong implication against the present claim. By omitting to mention this property in the inventory of his estate he declared, and that too under oath, that he had no interest in this land. These are some of the facts which bear upon the question whether Mr. Yan Yechten had refused or neglected to take upon himself the execution of the will; and if it was proper to leave that question to the jury, as I think it was, it is quite clear that we cannot disturb the verdict on the ground that it is against the weight of evidence.
The case, as the jury must have found the facts, comes to this : Mr. Yan Yechten did one act as executor, and then, and always afterwards, refused to take another step. The executrix went on alone, and after more than seven years had elapsed she conveyed to Palmatier. I think, though not without some doubt, that this refusal brought the case within the meaning of the statute, and that the power was well executed by Mrs. Rose-boom alone.
After the judge had laid down the rule that there must be a renunciation in writing, he proceeded to speak of the lapse of time as an aid to the defendant in making out such a renunciation. We have already seen that he erred in holding that a writing was necessary; and it cannot be very important to inquire whether he was strictly correct in what followed about the lapse of time. On the whole, we think the case went to the jury with instructions which were sufficiently favorable to the plaintiff, and that there has been no error in law of which he has a right to complain.
New trial denied.