Jackson ex dem. Hunt v. Ferris

Yates, J. delivered the opinion of the court. The prim ciples which governed the decision of Franklin v. Osgood, in the court for the correction of errors, (14 Johns. Rep. 527.) and of Jackson v. Burtis, in this court, (Id. 391.) are [348] applicable to, and fully decide, the present case. The case of essee Lessee Zeback v. Smith, (3 Binney, 69.) is also in point. The testator, in the case before us, gives the power to sell to his executors without naming them, which shows that the authority intended to be given was viriute officii, and it being a power to sell for the purpose of paying debts, the exercise of it was necessary to effectuate his intention. (Pow. Dev. 297. 307. Cro. Car. 382. Cro. Eliz. 26.) Besides, it is a power coupled with an interest. The wife, by the will, has a life estate in the premises. In short, the power contains all the requisites to show that it must have survived, and that it could not have been exercised by any person not an executor. The widow, at the time of sale, was the sole acting executrix; and by the statute, (21 Hen. VIII. ch. 4. sess. 10 ch. 47. s. 10. 3d of March, 1787. 1 Greenl. ed. Laws, 389. 1 N. R. L. s. 11. p. 364. 367.) where any of the executors renounce or refuse to act, the rest may execute the power. There can, therefore, be no doubt that the executrix, who alone qualified, had a right to dispose of the property, and the indebtedness, to authorize the disposition of it, sufficiently appears. The testimony clearly shows that the testator, before his decease, gave all his personal property to his daughter; and that he was considerably indebted, at least for his physician’s bill, and other small debts, with his funeral expenses. This is enough, and the property having been sold for its full value, at the time, there is nothing to affect or invalidate the sale made by the executrix. The defendant is, therefore, entitled to judgment. Judgment for the defendant.