Mitchell, Adm'r v. Spence

BRICKELL, C. J. The statute, which it is supposed, conferred on the administrator with the will annexed, the power to sell and convey the lands in controversy, reads as follows: “Where lands are devised to several executors, or naked power given them by will to sell, the survivor or survivors, and the acting executor or executors, when any one or more of them resigns, or refuses to act, or is removed by a court of competent authority, and also an administrator with the will annexed, has the same interest in, and power over such lands, for the purpose of making sale thereof, as the executors named in such will might have had.” — Code of 1876, § 2218. The words of the statute are plain — it is only when there is a devise of lands to executors to sell, or a naked power of sale conferred on them, that an administrator with the will annexed, succeeds to the .devise or to the power. The distinction between a devise to executors to sell, and a naked power to sell, is well known to the common law, and is very concisely and accurately stated in Patton v. Crow, 26 Ala. 431. A devise to executors by name, with directions to sell, intercepted the descent to the heir, passing the freehold to the donees, coupling an interest with the power. A mere devise that executors should sell, did not intercept the descent to the heir, passed no estate to the executors, and was a naked power. On these two devises the statute operates. There is no devise of the lands or gift of the personal property to the executors found in the will of the testator. There is simply a devise — a direction that the executor should sell all the estate, real and personal, not specifically devised and bequeathed by the first item or clause of tho will. If it is a naked power of sale, the administrator with [453] the will annexed succeeded to it; but if it is founded in the personal confidence reposed by the testator in the executor, the statute does not intend its delegation or transmission to another. — Anderson v. McGowan, 42 Ala. 285; Tarver v. Haines, 55 Ala. 503. The distinction between a naked power of sale, on which the statute operates, and a discretionary power, resting in personal confidence reposed in the executor, not within the operation of the statute, is fully discussed in the authorities referred to, and it would be useless repetition to renew the discussion. We cannot doubt the power of sale conferred on the executor is of the latter class. The sale is to be made so soon after the death of the testator as the executor, his brother, shall deem it expedient; and is to be made publicly or privately, for cash or on credit, at his discretion. The executor is also appointed guardian of the testator’s children, among whom and their mother, the proceeds of sale are to be divided. In the event of the death of the executor in the life of the testator, another executor is nominated. The time of the sale is committed to the judgment of the executor — when he shall deem it expedient, fit and proper, under all the circumstances, the sale must be made; but it can only be made after an exercise of his judgment. The mode of sale— whether it shall be public or private — and whether it shall be for cash, or on credit, rest also' in his discretion. The relationship of the executor to the testator, the appointment of the executor as guardian of the testator’s children, the terms of the devise, and the nomination of an executor to execute the trusts of the will, if the one should die in the life time of the testator, indicate clearly that the power sprung from the confidence reposed by the testator, and is a trust personal to the executors named. He had confidence that either of them would make a sale, only when it was fit and proper the sale should be made — to their judgment and integrity he committeed the time, mode and terms of sale. If the power had been naked — if it was simply to sell and convey, to it the administrator with the will annexed would have succeeded. But the sale and its terms depend on the exercise of judgment and of discretion by the executors, and the power is not, therefore, transmitted by the statute. The sale made by the administrator is consequently void, not conferring any title on the purchaser. A court of equity will not take jurisdiction to declare such a sale void, and cancel the conveyance made in execution of it. The remedy at law for the recovery of the lands, if held by the purchaser, is adequate. The. conveyance discloses its own invalidity, [454] and can cast no cloud on the real title. — Posey v. Conway, 10 Ala. 855. The decree of the Chancellor dismissing the bill must be affirmed.