Meredith's Estate

The following opinion of the Court was delivered by King, President. That the devise in this will vested the legal estate in the executors of William Meredith, is a proposition which is indisputable: Allison v. Wilson, 13 S. & R. 322; Menow v. Brenizer, 2 Rawle, 185; Allison v. Kurtz, 2 Watts, 185; Miller v. Meetch, 8 Barr, 425; Alexander v. Murray, 8 Watts, 504; and so far as respected the devisees, the executors, in the execution of the power, could have conveyed to a bond fide purchaser an infeasible title in fee-simple. The interest of the devisees was in the execution of the trust, unless, the debts of the testator being fully paid, they had all united in electing to take the land devised as land, and thus converted their interest into realty. But could this power be executed by an administrator with the will annexed in a case where, like the present, the executors refused to take upon themselves the execution of the trust ? This depends upon the true construction of our Acts of Assembly enacted to meet such emergencies. By the Act of the 31st of March, 1790, §4, it was declared “that when, by the last will and testament of a decedent, a naked authority only to sell lands, &c., shall be given to executors, they shall hold the same interest in such lands, &c., and shall have the same powers and authorities respecting the same as if such lands, &c., were devised to them to be sold.” By the Act of the 12th of March, 1800, this power was further defined, and extended to embrace, among others, cases where lands were devised to executors to be sold, or where authority was given to executors to make sales of land; and where one or more of the executors had refused to execute the trust, or had renounced his executorship. In which cases authority was given to the acting executors to execute the trust. It was further provided by the 3d section of this Act; that where all the executors of such a will were deceased, or refused or renounced, and letters of administration with the will annexed had been granted, that the administrators with the will annexed should have as full power to sell and convey the land devised or directed to be sold as was possessed by the executors named in the will. The 13th and 14th sections of the revised Act of 1834, re-enact these provisions of the Act of March, 1800, except those embraced in the 3d section, in reference to which they are entirely [435] silent, neither supplying nor directly repealing it. But by the 67th section of the Act of 1834, it is declared that “ all and singular the provisions 'of this Act relative to the powers, duties, and liabilities of executors are hereby extended to administrators with'’ the will annexed.” This section was clearly intended to supply, among other things, the 3d section of the Act of 1800, the provisions of which the revisors preferred introducing in this general form, in one of the concluding sections of the revised statute. In their report, they refer to the 3d section of the Act of 1800, as embraced by this section, and declare that for the sake of brevity, they have introduced this general provision, placing administrators with the will annexed on the same footing in every respect with executors. But if it could be successfully contended that the provisions of the 3d section of the Act of 1800 are not embraced within the enactments of the revised Act of 1834, then the former must still remain in full force. For the repealing clause of the Act of 1834 only extends to acts thereby altered or supplied. If, therefore, the Act of 1834 repeals that of 1800, it supplies its provisions ; if it does not, then the Act of 1800 remains in full vigour. The circumstance that the testator requires two of his executors at least to concur in the sale of his real estate, has no influence on the question of the capacity of the administrator with the will annexed to execute the trusts of the will. He succeeds by virtue of his office to all the unexecuted powers of his predecessors in the trust, whether the latter were few or many. He neither supplies the place of one nor two, but of all, and possesses the authorities enjoyed by them all. In the opinion of the Court, the administrator with the will annexed of William Meredith, deceased, has the power to make the sale of this estate required by the petitioner, and it is his duty to proceed to do so.