Mimms v. Delk

The opinion of the court was delivered by

Mr. Justice Gary.

The facts out of which this case arose

are stated in the judgment of the Circuit Court. The exceptions complain of error on the part of the presiding judge in deciding that the executor had the power under the will to sell the lot or parcel of land described in the complaint.

1 The testatrix appointed two persons as executors of her will, for the more effectually carrying out the several provisions thereof, and also vested the title in all her estate, both real and personal, in her executors, the better to enable them to see that all her directions were strictly followed. Vesting the title in all her estate, both real and personal, in her executors, of course, included the lot of laud in the town of Black - ville, being the land described in the complaint.

One of the directions of her will was that the rest and residue of her estate, both real and personal and mixed, which she gave *200to her eight children, should be distributed among them share and share alike, as therein set forth. The object in vesting the title to this lot in the executors was to enable them to make this distribution. The property described in the complaint being merely a lot in the town of Blackville, it could scarcely have been the intention of the testatrix that the executors should distribute it among the children in land. As it was the intention of the testatrix to vest the title to this lot in her executors for the purpose of carrying out the “directions” of her will, one of her “directions” being that the rest and residue of her estate, including the lot of land in the town of Blackville, should be distributed among her children; and as it was, also, her intention to confer upon her executors all necessary power for making such distribution, which, on account of the character of said property, it was not her intention should be made in kind; and as it is necessary that there should be a sale of said lot so as to make the distribution, the power was conferred by implication upon the executors to sell said lot.

It is the judgment of this court, that the judgment of the court below be affirmed.