Jackman v. Delafield

Mr. Justice Sterrett

delivered the opinion of the court, No: vember 12th 1877.

The plaintiffs in error based their defence in the court below on the deed of H. Brady Wilkins, Esq., administrator de bonis non cum testamento annexo of James Ross, Sr., deceased. They contended that the power of sale, given by the testator to his executors, was rightly exercised by the administrator, with the will annexed, and that by his deed a good title became vested in Andrew Jackman, the vendee. The court was accordingly requested to charge the jury that their verdict should be for the defendants. This instruction was refused by the learned judge, and a verdict was directed pro forma, in favor of the plaintiffs, subject to the opinion of the court in banc, on the question of law raised by their second point, viz.: whether the deed in evidence did or did not convey title to the lot in controversy. This question was decided adversely to the defendants, and judgment was entered on the verdict against them. This action of the court forms the subject of complaint in the several assignments of error. The only question presented is the authority of the administrator de bonis non to execute the power of sale given by the testator to his executors. If it was intended to be exercised by them as executors by virtue of their office, on their decease, resignation or removal, it would devolve on the administrator with the will annexed. Whether the power was to be exercised by them as executors, or otherwise, must be determined by the provisions of the will.

After devising portions of his real estate, and making sundry bequests, the testator devised a,nd bequeathed to his executors all the rest and residue of his estate, real and personal, with full power and authority to take possession thereof; to institute suits for the recovery of the same; to compound and compromise all disputes; “ to sell and convey the said real estate in such manner as they shall think proper, either at public or private sale,” and “ to receive the purchase-money and give acquittances for the same.” He then directed his executors “ to pay or transfer the one equal half part of the same rest and residue” of his real and personal estate to his son James absolutely, and directed the remaining one-half part to be equally divided among his three granddaughters. It is very clear that full power was thus given by the testator to his executors 'to sell the residue of his real estate for the purpose of distributing the proceeds thereof, in connection with the residue of his personal estate, among the objects of his bounty. Nor is this authority restricted or in any manner affected by the creation of the trusts in favor of his granddaughters. It has been definitely settled by this court that where such power of sale is given by will to the executors therein named, it belongs to them virtute officii, and may be exercised by .the administrators with the will annexed, under the provisions of the Act of February 24th 1834: Evans v. Chew, 21 P. F. Smith 51; Lantz v. Boyer, 31 Id. 325. The question before us has been distinctly ruled in these cases, and it is unnecessary for us to repeat what is there so well said by our brother Sharswood.

The judgment is reversed, and judgment is now entered in favor of the defendants below, on the question of law reserved, non obstante veredicto.