Pitman v. . Ashley

Smiti-i, C. J. The executor in this proceeding is entitled to the advice of the court for his guidance and direction in the discharge of his own fiduciary duties only; and of the numerous interrogatories propounded for solution, there is but one at all doubtful in which ho has any personal interest to be affected. 'That, enquiry is as to the-import of the concluding clause, wherein the testator uses this language in reference to the executor : “ I wish him to wind up as slowly as he can, as I hope the bonds and coupons will pay all my just debts and considerably more, and save the lands. He is empowered to sell them as I would, or he may think proper.” The question asked is whether the word “them” embraces the lands as well as the bonds and coupons, or the latter only, and we concur in the interpetation of His Honor which excludes the land and confines the power conferred to the bonds and •coupons. *614 The other interrogatories, more than twenty in number, are in reference to the reai estate devised; the respective interests of the sisters as life tenants; and of the grandchildren who are •entitled in remainder; and the persons to make the sales mentioned to'Stephen and Andrew Ashley. Of these it is only necessary to say that the executor'discharges bis duty in delivering the property given to the sisters to them, and to the survivor, O. M. Fuller, if he has not done so while both were alive, and with any controversy which may arise among the grandchildren as to their respective shares, after the death of the surviving life tenant, the executor has nothing to do. That controversy they must settle among themselves when it becomes a practical one. We' have remarked that possibly one other enquiry -was proper to be answered; and that is, who are to make the conveyances to Stephen and James Ashley ? The language of the will is too plain to admit of a doubt, since the testator says in positive terms, “ I wish iny sisters to sell,” and then designates tracts to be sold and the terms of sale, which lands are part of those devised to them and in remainder to their grandchildren. The principle which governs the court in entertaining applications of this kind, and the cases in which advice will be given, is so clearly stated in Tayloe v. Bond, Busb. Eq., 5, by the late Chief-Justice, and is so appropriate to the present case as to dispense with further comment. See Robinson v. McDiarmid, 87 N. C., 455. We find no error in the rulings of the court upon the enqui-ries of which it could take rightful cognizance in this proceeding, as we have explained, and none others are intended to be decided. There is no error. Let this be certified. No error. Affirmed.