Gray v. Henderson

The opinion of the court was delivered, by Sharswood, J. It is undoubtedly true and has been so held by this court in Myers’s Appeal, 12 P. F. Smith 104, that no implication merely of a power in executors to sell will take a case out of the jurisdiction of the Orphans’ Court under the 12th section of the Act of February 24th 1834, Pamph. L. 73, which provides that “ all powers, authorities and directions relating to real [370] estate contained in any last will and not given to any person by name or by description, shall be deemed to have been given to the executors thereof; but no such power or direction shall be exercised or carried into effect by them, except under the control and direction of the Orphans’ Court having jurisdiction of their accounts.” But this provision, neither by its letter or spirit, requires that there should be any form in the gift “ by name or description.” It is not necessary that the testator should say, “ I authorize my executors to sell,” or “I direct my land to be sold by A. B.” It is enough, if in any part of his will his intention is expressed as to who should sell either by name or description. Here we think there is such an intention clearly expressed in the will of Alexander Boyd, not merely implied. “ Should it be thought best by my executors to divide it into small lots and sell at public sale, &c.” Does not this language express, not merely imply, that his executors shall sell? We do not see how any other interpretation can be put upon it. The same expression of intention is contained in the codicil. In consequence, as he says, of the distant location of the executors named in the will and consequent difficulty of attention to such duties, he appoints an acting executor, “ desiring him, if convenient, to consult with the above-named executors in the sale of the real estate.” Does not this express, not merely imply, that the sale of the real estate was one of the duties which he had devolved on his executors ? Implied powers are where the distribution or management of the fund produced by a sale is expressly confided to the executor as stated in Boshart v. Evans, 5 Wharton 561, or where the produce of the sale of the realty is confounded by the testator in one common fund with the personalty, even though there is no express direction to the executors -to distribute it, as was the case in Myers’s Appeal, 12 P. F. Smith 107. But those are very different cases from that presented by the will before us, where the testator in two places expresses in words his intention that his executors should sell, and that the duty of the sale should devolve upon them. The determination of this point in favor of the power exercised by the executor renders unnecessary the consideration of any other question raised upon this record. Judgment reversed, and a venire facias de novo awarded.