Brennan v. Wilmington Trust Co.

Rodney. J. delivering the opinion of the court: The sole question to be determined in this case is whether a conveyance made by executors pursuant to a sufficient and ample power in a will vests the title in a purchaser free and clear of the lien of a judgment recovered against a devisee of the real estate named in said will. The question is a narrow one and, in view of the almost uniform current of decisions, not of great difficulty. A large portion of the defendant’s brief discusses the question as to whether the title of the children of the testator, including Edward H. Brennan, Jr., the defendant in the judgment, was a vested or a contigent one. In our opinion this question is unimportant and immaterial. It is sufficient to say that the instrument which created their estate, whatever it was, lodged in the executrices the power to dispose of the fee simple title of the real estate, and pursuant to this power the conveyance in question was admittedly made. The title of the devisees in the real estate was not an absolute one in its fullest sense. The power to sell was vested in others, the executrices. In fact, as pointed out in Smyth v. Anderson, 31 Ohio St. 144, the legal aspects of the case would not be changed if the testator had given the power of sale to his executors, leaving the distribution of the estate to the law of descents. In such case the legal title would have gone to the heirs subject to be divested by the proper execution of the power of sale and the conveyance of the land to which the power of sale attached. It has been determined in Delaware that a direction to an executor to sell real estate vests no estate in the executor, but that,subject to the sale, the title descends to the heir at law or is vested in the devisee (Lockwood v. Stradley, 1 Del. Ch. 298, 12 Am. Dec. 97). As said in Spruance v. Darlington, 7 Del. Ch. 111, 131, 30 Atl. 663, 665: [485] “Between the death of the testator and the sale, the title to the fee descended to his heirs at law, and remained in them until it was divested by the execution of the power conferred upon the executor.” It would seem then to be settled that as between an heir at law or devisee on the one hand and a power of sale given to an executor on the other, that the execution of the power by the executor in the ordinary course of the administration and settlement of the estate which created the power, divests the title of the heir at law or devisee. The fact that a third party had obtained a lien on the interest of a devisee cannot change this rule of law. It is a general rule that a lien creditor has no greater rights in the property covered by the lien than the debtor himself had. While not strictly pertinent, the case of State v. Huxley, 4 Harr. 343, has some application by analogy. There it was determined that an assignee of intestate lands in the orphans’ court took all the title the intestate had at the time of his death paramount to any incumbrance created by any heir of the intestate. Extended extracts from adjudicated cases in other jurisdictions can serve no useful purpose since no case has been found which is not in accord with the principles here adopted. 24 C. J. 182; Morse v. Hackensack Savings Bank, 47 N. J. Eq. 279, 20 Atl. 961, 12 L. R. A. 62; Ackerman v. Gorton, 67 N. Y. 63; Comrie v. Kleman, 162 App. Div. 510, 147 N. Y. Supp. 589; In re Fagan, 166 App. Div. 244, 151 N. Y. Supp. 701; Penn v. Mutual Cotton Oil Co., 106 Ga. 152, 32 S. E. 17; 2 Underhill on Wills, 1116. It is, of course, apparent in this case that no question is before us involving any right of the devisees by election or otherwise, to defeat the execution of the power of sale, nor are we now concerned with the further question as to whether the judgment created any equity in the fund arising from the sale by the executrices. We are, therefore, of the opinion that the judgment recovered against Edward H. Brennan, Jr., one of the devisees of Edward H. Brennan, was not a lien paramount to the title acquired by Wilmington Trust Company by virtue of the deed of [486] the executrices of Edward H. Brennan, Sr., said deed being made pursuant to the power of sale conferred in said will. Judgment is, therefore, entered for the plaintiffs in the sum of $5,500 and costs of suit.