Council v. . Averett

MerbimON, J. (after stating the facts). The single question presented by the record for our decision is, did the will above set forth, confer on the executors therein named, power to sell the land embraced by it? If it did so, then the administrator oum testamento annexo, mentioned, had the like power by virtue of the Statute (The Code, §2168), which confers on such administrators the like power as the will conferred upon the executors, and the deed under which the plaintiff claims title, is valid. The testator, by his will, gave and devised to his widow, “ all my (his) property of every kind whatsoever,” for life or during widowhood, and at her death or marriage, directs “ it all to be sold,” &c. He had both real and personal property, and the *133 broad sweeping words employed in disposing of it, carried the whole. Generally, when the will directs lands embraced by it to be sold for the purpose of division among devisees, and no person is designated and empowered to make the sale, the power to sell cannot be exercised by the executor, nor by the administrator, in cases like the present one. But the testator may confer such power on the executor, and this may appear from the express terms of the will, and as well and certainly, by reasonable implication from its provisions. Thus, it has been held, that when the fund to be divided is to come out of the proceeds of the sale of both real and personal property, the executor has power sell the real estate, because he must sell the personal property, and nothing to the contrary appearing, the reasonable inference is, that the testator intended that he should sell the real property also. And so also, it has been held, when the property is directed to be sold to raise a fund to pay debts, or discharge legacies, or the fund to be created by the sale is to pass into the hands of the executor, to be applied by him by virtue of his office, that the power is conferred on him by reasonable and necessary implication, in the absence of anything to the contrary. This whole subject is well discussed, and numerous authorities cited, by the Chief Justice, in Vaughn v. Farmer, 90 N. C., 607. The principle applied in the case just cited, is applicable in the present one, and must govern it. The will directs a sale of all the property “of every kind whatsoever,” and the fund produced by the sale to be divided as in the will directed. The intention and direction that the executors named should sell the land as well as the personal property, is plainly implied. The sale, in the absence of fraud, is therefore valid. No error. Affirmed.