Ocheltree v. McDaniel

Lore, C. J.: We think that the whole matter here turns upon the question of whether or not they were confined by the terms of [293] the will to this one party, and that the burden is therefore upon Mr. Hoffeeker. Francis H. Hoffeeker, for defendant:—The persons named as executors having refused to take letters testamentary, an administrator c. t. a. has no authority as such to make the sale directed by the will. The direction to sell was a personal confidence in the executors named and it cannot be executed by the administrator. Lockwood, admr. c. t. a. et. al. vs. Stradley et. al., 1 Del. Chancery, 298 ; Frost vs. McCaulley et. al., 7 Del. Chancery, 493, 162. The duties of an executor resulting from the nature of his office devolve upon an administrator with the will annexed when the authority is not necessarily connected with a personal trust and confidence reposed in the executor by the testator. 1 Williams on Executors 528; Farwell vs. Jacobs, 4 Mass., 634; Knight vs. Loomis, 30 Maine, 204; Brush vs. Young, 28 N. J., 237 ; Boss vs. Barclay, 18 Penna. St., 179. See Revised Code, p. 692, Section 17. Walter H. Hayes, for plaintiff:—The provisions in the will of Maxwell B. Ocheltree, authorizing and directing his executrix, therein named, to sell and dispose of the real estate in question, after the arrival of his youngest son at the age of twenty-six years, is directory merely; the execution of said power of sale by his administrator, d, b. n. c. t. a., as set forth in the case stated, is a good and valid execution of said power of sale. Wilds vs. Bergen, 16 Hun., 127; Waldron vs. Schlang, 47 Hum., 252 ; Slaters App., 43 Pa. St., 83; Fahenstock vs. Fahenstock, 152 Pa. St, 56; Marse vs. Love, 42 N. J. Eq., 112; Phillips vs. Davies, 92 N. Y, 199; Mott vs. Ackermann, N. Y., 539 ; Hale vs. Hale, 137 Mass., 168. [294] We rely upon the statute (Revised Code (1893) Chap. 90, p. 692, Sec. 17, which amended the law upon which the decision in Lockwood vs. Stradley (1 Del. Chancery, 298) was based. Lore, C. J.: —After a careful consideration of the facts set forth in the case stated and of the arguments upon the same, the Court feel constrained to order that judgment be entered for the plaintiff for $7555.36. Judgment for plaintiff for $7555.36.