Epley v. . Epley

Shepherd, C. J.: We think it very clear that the will did! not authorize a sale of the land by the executors. The land-devised is not to be sold to pay debts, legacies, costs or charges-of administration, nor is it to be sold with personal property, nor are the proceeds of sale mixed with the personal estate^ It was devised to Catharine for her life, and upon her death it was to be sold and the proceeds equally divided among the-children then living. There is no express authority given the executors, and none can be implied from the provisions-of the will. Bentham v. Weltshire, 4 Mass., 44; Foster v. Craige, 2 Dev. & Bat. Eq., 209; Council v. Averett, 95 N. C., 131; Vaughan v. Farmer, 90 N. C., 607. It is true that the petition does not allege that the petitioners are entitled to the immediate possession, but it alleges that they are tenants in common in fee. This, at most, is but a defective statement of a cause of action, and in the case on appeal, signed by counsel, it does not appear that the point was insisted upon *507 in the Court below. The motion to dismiss in this Court is-therefore disallowed. Besides, it is not like the case of Alsbrook v. Reid, 89 N. C., 151, cited by defendant,Jn which it affirmatively appeared that the petitioners were not entitled to the possession until after the determination of an existing estate for life. Affirmed.’