Orrender v. . Call

Davis, J., (after stating the case.) The first exception is to the record showing the allotment of dower.to the widow, in 1847. -The widow was entitled, under the will, to the possession of all the land for ten years, and after that her dower was to be allotted,' and the evidence was offered to show that the provision of the will in regard to the land had, in this respect, been complied with. It could not prejudice the defendant in any event that we can see, for, whether allotted or not, it could not affect the power of the executor, or, in the event of his death, the power of the administrator de bonis non, with the will annexed, to sell the land after the death of the widow; and the on'y material questions presented and discussed relates to the power of the administrator de bonis non, with the will annexed, to sell, and the effect of the deeds made by some of the children of the testator, under which the defendant claims title. We think the administrator, with the will annexed, had the power under the statute to sell, and that the deed from him to the purchaser was valid and conveyed a good title. Rev. Stats., ch. 46, § 34; Rev. Code, ch. 46, § 40; The Code, § 1493; Rogers v. Wallace, 5 Jones, 181; Council v. Averett, 95 N. C., 131; Vaughn v. Farmer, 90 N. C., 607, and cases cited. Whatever may have been the effect of the deeds under which the defendants claim they could not operate to defeat the power of the executor, or the administrator with the will annexed, to sell, in accordance with the directions of the will, after the death of the widow. The proceeds of the land, directed to be sold after the life estate, and divided *403 among children, will be regarded as personalty. This is settled by Smith v. McRay, 3 Ired. Eq., 204; McLeran v. McKethan,7 Ired. Eq., 70; McBee and others, ex parte, 63 N. C., 332, and many other cases ; and whatever might be the effect of the deeds of some of the persons interested in the proceeds of the sale under the will, it could not be to deprive the executor, or administrator with the will annexed, of the power conferred by the will to sell. Donoho v. Witherspoon, 70 N. C. 649, and Brandon v. Phelps, 77 N. C., 44, cited by counsel for defendants, relate to land sold by heirs after two year's, and have no application to the case before us, in which the land, by the terms of the will, was not to be sold till after the death of the widow, when it was to be sold by the executor and the proceeds divided, &c. Whether the dteds of the children, under which the plaintiffs claim, operated to convey their interests in the proceeds of the sale, it is not necessary for us to consider. They did not convey the land, nor did they constitute such color of title— as against the executor or administrator wdth the will annexed, or against the other children, whose rights and interests might require the sale .of the land in accordance with the directions of the will — as would be perfected by seven years possession. Certainly, such possession would not be adverse to the rights of the children who did not sell, and. who had the right to require the provision of the will to be executed ; and, even supposing it to be adverse, it would only begin from the death of the widow, which occurred, the case states, “three or four years before the trial of this cause.” Rogers v. Wallace, 5 Jones, 181; Hicks v. Bullock, 96 N. C., 164; Page v. Branch, 97 N. C., 97, and cases cited. We have not considered the motion of counsel of appellee to dismiss for want of proper assignment of error, because the exceptions plainly appear in the case stated by his Honor below, by whom the case on appeal was settled. Affirmed.