said: I concur with Justice Young in the positions assumed by him. With due deference to the high character of the Court who made the decision referred to in 21 Wendell, I must be permitted say that I never could have given such an interpretation to the New York statute, and therefore, could not allow it to become a guide in determining the meaning of our own. One rule of interpretation not adverted to by the Court, is, to gather the true meaning of the law makers, from the spirit of other acts in pari materia, as well as the individual act. In England, with a view of sustaining a landed aristocracy, great restraints upon alienation of land remain to this day. In most of the States, and particularly here, all restraints are removed, and but one incumbrance upon it left, that of dower, which may also be removed by consent of the wife. Its alienation is as free as that of personalty, and it has become a species of capital, and I might say an article of domestic commerce. It may not only be mortgaged, but incumbered by judgment and sold on execution, and is liable for the payment of debts, after exhausting the personalty. In these last particulars the laws of England have been wholly changed with us, and it becomes a fund in the hands of the administrator for the payment of debts. Under these liberal and enlightened principles of polity for supplying our wants, paying our debts, and accomplishing our purposes in regard to our families, can there be any sbund reason for adhering to an old technicality in regard to naked powers, and applying it to an administrator who could, without directions in the will, if necessary, sell for the payment of debts? It does not appear by this record, whether there were debts or not. If there were, he might, by petition to a Court of law, obtain an order to sell, and if not charged with the execution of this direction in the will, he might sell it for what it would bring, and so defeat the intention of the testator, by selling for less than eight dollars per acre, as directed in the will. Again, as the administrator is not charged with the care, maintenance and education of the children, and the will directing the application of the proceeds of the sales to those objects, the children might not be able to compel him to do that with which he is not charged by the will, if it be true that he has no power to sell; so the Court of Chancery would have to appoint a trustee to execute the will, and he might be other and different person from the administrator. Here would be the anomaly, then, of an administrator with the will annexed charged by law with the due execution of the will, and under bond to do so; and yet a trustee clothed with all and the only power to perform the duty. This would be absurd. I think this is a power coupled with an interest which survives to an administrator for the benefit of the children; and that by our statute he is authorized to fulfil the directions of the testator. The idea of a personal trust, under such circumstances, being reposed in the executor, is not admissible, for he appointed none, and still, left his directions for a sale, knowing that an administrator would have to be appointed to accomplish them.
Judgment affirmed.