Twitty v. . Lovelace

*56 Smith, C. J., (after stating the facts). The only question presented on the appeal, is the correctness of the interpretation put upon the contract by the Court, since the refusal to allow a third issue, if the subject of exception at that stage of the trial, is connected with and dependent on it. In this we concur in the opinion of the Judge, that a conveyance of the interest which the testatrix had in the entire tract, fulfills the requirements of the contract. It is stated that the sale of the premises was made some weeks before the paper writing was delivered, and it is not to be supposed that the verbal contained more stringent obligations than are found in the written undertaking. The executors were but exercising a power, and acting as trustees in carrying out the directions of the will which confers the power and imposes the trust, and this would be done by selling the estate, whatever that might be, which was vested in the testatrix, without a personal assumption as to its nature and extent. This is plainly expressed in the contract itself, for it declares the price to be paid is “the consideration for Miss Sarah Hamilton’s interest in her farm,” and that when the purchase money has been paid, the defendant “ is to have a deed in fee for said interest from the executors.” The stipulation is to convey her interest, and to execute a deed in form sufficient to pass her estate in fee simple, if such she had. It would be most unreasonable to expect the executors to enter into a personal obligation as to the title, or to attempt to impose it upon the trust estate. The latter they could not do, since the power given is to dispose of the testatrix’s estate — not a larger or a better estate than she possessed in the farm, but that estate or interest which was vested in her. We have an illustration of the principle in Osborne v. McMillan, 5 Jones, 109, where the administrator of one who had entered into a contract for the sale of land, and had not made the deed, executed a deed therefor containing a covenant of quiet enjoyment, under the act of 1797, ( The Code, §1492,) and *57 was sued because of an eviction under a paramount title in another. Delivering the opinion, Nash, C. J., uses this language : “ Before the passage of the act of 1797, when a vendor entered into a bond to make title, and died before doing so, his heirs were the proper persons on whom the purchaser had the right to call for the necessary conveyance. If they refused to convey the title, the purchaser was driven into a Court of Equity, and to such a suit the heirs were necessary parties. This proceeding was attended with much delay, trouble and expense. To avoid this expense, trouble and delay, the acts were passed, and they are express in limiting the operation of the administrator’s deed, so far as the estate of the intestate is concerned, to the title of the intestate.” The analogy in the cases is strong. As the statute enables, the representative to pass the intestate’s or testator’s title, and this only to the purchaser, so the will, without aid from the statute, confers the same power to sell and convey the title of the testatrix in the land, and this is the full extent to which, as executors, discharging a fiduciary duty, the defendants could go, or have attempted to go. There is no error, and the judgment must be affirmed. No error. Affirmed.