Ex parte Elliott

The opinion of the Court was delivered by Gibson, C. J. Originally, there seems to have been a doubt whether a testamentary power to raise portions from profits at an indefinite time, includes a power to sell; or whether the amount _ should be raised by gradual accumulation. But the existence of an ancillary power to sell for payment of legacies and debts, has never been questioned. Subsequently, when not restrained by particular expressions, the Courts have implied it in all cases without regard. to the purpose; on the ground that a devise of profits is equivalent to a devise of the land; and such is the law ai: this day. Here however there is a direction to raise the widow’s annuity, not out of profits at all, but out of the land, itself; and even were thei'e a distinction betwixt profits and the land, the power of the executrix to sell would still be a clear one. Deriving this power from the will, the administrator succeeds by force of the act of 1836, only to so much of it as remains to be executed; so that the question here, is whether it has not been exhausted. We have but few reported cases on this head. It is an undoubted principle that execution of a power cannot be repeated; but it may be entered upon by parcels and at different times: yet all the parts, though existing separately, must make together no more than one entire execution. It cannot be said that the part of the power which regards the land out of which issues the ground-rent in question, was not intended to be executed to the utmost, though the residue of the power might be subsequently used to dispose’ of other lands. The disposition made of the property, was an ordinary sale or exchange for a ground-rent — a disposition entirely within the scope of the power, which was not barely to sell, but to dispose of the land ,in any way to raise the amount required — and the will certainly gave the executrix no power to sell a thing to be taken in exchange. The purpose was answered by the conveyance, and nothing more remained to be done. For the pui*pose of extinguishment, a power under the will was unnecessary; and the act belonged not to the executrix, but to the person in whom the-estate in the rent was executed by the statute of uses. This is not like the case of a mortgage, which, in equity, is not an execution of a power to revoke, though it is so at law; because a mortgage,being looked on [529] by a chancellor, not as a conveyance further than is necessary to enforce it as a security, works no alteration in the condition of the title ; nor is it like a conveyance to a trustee to pay debts, with an ultimate trust for the settlor: such acts are consistent with a reservation of so much of the estate as may be left, for a final execution of the power in respect of it. In the case of the mortgage, the estate is not supposed to have passed out of the mortgagor at all; and in that of the conveyance to pay debts, the trust is a resulting one, which changes not the character of the interest retained by means of it. Here, however, every portion of the title was parted with; and it is of no account that the ground-rent taken in exchange for it, has been substituted as its proper equivalent by a private act of assembly. As the administrator succeeds to no power uncreated by the will, it is requisite that he have an authority by it independent' of every thing else. The legal estate in this ground-rent, is vested by the terms of the conveyance, in the testator’s daughter, who is still in 'her minority; and 'thus one of the cases provided for by the legislature has arisen. We are therefore of opinion, that we have jurisdiction of it; that the demurrer be overruled; and that the prayer of the petitioner be granted. Demurrer overruled.