delivered the opinion of the Court. The question here is, whether the power of sale in the will of Ohadiah Cooper senior, was well executed, by the sole surviving executor ?
*171I am of opinion, that as the will not merely authorises the executors, or any two of them, to sell, hut positively orders them to sell the lands, it presents a case within the purview of the statute of 21 Hen. 8. ch. 4. which is re-enacted in our “ act concerning wills.” (1 N. R. L. 366. s. 11.)
Nothing can be more express, or certain, than the intention of the testator in this case, that his real estate should, at all events, be sold, in order that the money arising from it might be distributed.among his children; and without such sale, he must be deemed to have died intestate as to his real estate. I incline to think, therefore, that upon common law principles, independent of the aid which the sta" tute affords, it was a power which survived to the last executor, and was rightfully exercised by him alone.
If the testator had said, “T order my executors to sell,” there could be no doubt that the power would survive to the longest liver, by the common law, as well as by the statute ; because there is an interest coupled with the power, for the surviving executor was to share in the avails ; and if there be doubt in this case at common law, I think the words “ or any two of them,” as terms of limitation or restriction, are controlled by the operation of the statute ; the object and design of which was, to carry into effect the direction to sell lands, where the testator had used words of restriction which practically defeated his intent. The statute was founded in the rule of policy, which requires that a trust shall not fail of execution, for want of a trustee; and it was to save the necessity of resorting to Chancery, for the appointment of a trustee, that the legislature have enacted, that “ all sales of lands (ordered by will to be sold, &c.) by the executor or executors, who take charge of the administration of the will, shall be equally valid as if the residue of' the executors had joined in the sale.”
This ground is conclusive against the whole claim of the plaintiff; because it defeats the claim of l-7th under the will of Obadiah Cooper, jun., as well as the 1 -7th claimed as heir to Obadiah Cooper, senr.; for if the title passed by the sale made bj Jacobus Cooper, as executor of his father’s will; then, of course, the title which descended to Obadiah Cooper, jun., and which he devised to his sister the lessor, was sub*172ject to be defeated by the execution of the power of sale jn (-(lejr father’s will.
This view of the case renders it unnecessary to consider the other point relied on by the defendant.
I am, accordingly, of opinion, that judgment of nonsuit ought to be entered ; and that is the opinion of the Court.,
Judgment of nonsuit.