Chandler ex rel. Noblit v. Delaplaine

The Chancellor :— It is clearly necessary in order to carry into effect the provisions of the will of Peter Hendrickson Senior that" the lands and'premises mentioned in the will shall be sold and the proceeds thereof divided among the parties entitled, according to their several and respective interests. And there is no person named in the will to carry into effect the direction to sell. Upon a proper construction of the provisions of the will touching the sale, it is clearly not a direction for the sale of the real estate for the mere purpose of the conversion of the same into money and for the distribution thereof as part of the personal estate in the hands of the executor or of the administrator or administrators de bonis non, cum testamento annexa. I do not consider, therefore, that the provision is within the true intent and meaning of Section 17 of Chapter 90 of the Revised Code, touching the execution of the power of sale under the last will and testament where no person is authorized by such last will and testament to make the sale. The scope of the section referred to does not seem to be applicable to a case in which, by the plain and unambiguous meaning of the will the power of sale could, under no circumstances, have been carried into effect by the executor, but here, the time at which the sale is directed to be made might not arrive, in case, as was the fact, the tes [507] tutor’s widow had not married, until the death of the person appointed executor of the will. I do not consider therefore, that the exercise of the power of sale, and distribution can be made by the administration de bonis non, cum testamento annexa; but it must be executed by this Court by the appointment of a trustee to make sale of said premises and by the distribution of the proceeds thereof under a decree of the Court pursuant to the instructions of the will. A trustee therefore, will be appointed by the Court to make the sale and such proceedings had thereon as are usual in such cases. But in order that the title to be taken, by any person, of the premises sold,' may be relieved of any and all doubt, touching the validity of the sale, which might arise out of the construction of the statute before referred to, the decree may embody an order that in any conveyance or conveyances to be made by the trustee under the future order of the Chancellor, the administrators de bonis non, cum testamento annexa, of Peter Hendrickson, deceased, ■ shall join as parties grantor. A decree was accordingly made, directing the sale of the property by the trustee. And the sale thereunder was made and confirmed and the proceeds distributed, and the administrators joined in the deed pursuant to the decree. Note. In Lockwood vs. Stradley, 1 Del. Ch., 298, it was held by Chancellor Ridgely, that where the will directed the executors to sell all the estate of the testator, real and personal, and distribute the proceeds among certain named legatees, no estate was vested in the executors and the real estate descended to the heirs at law. The trust in the executors to sell was a personal confidence, and could not be executed by the administrator with the will annexed, but the trust may be executed by the Court where the property given and the objects benefitted were certain. Accordingly, a decree was entered for the sale of the lands described in the bill, to be made by a trustee appointed, for the purpose, by the Chancellor and the proceeds of sale were applied by the trustees according to the trusts of the last will and testament of Thomas Candy, deceased. In that [508] case, it being held that the real estate descended to the heirs at law, in order to make a perfect title under the order of sale made, all the heirs at law of the testator were directed in the decree to join with the trustee in the deed conveying the premises to the purchaser. This case was determined in 1825, four years prior to the passage of the first act upon the subject now embodied in Section 17, of Chapter 90, of the Revised Code, 7 Del. Laws, 272. At that time, if there were any doubt as to the title to be made under a sale by the trustee appointed by the Court, it would manifestly have been cured only by the course adopted by Chancellor Ridgely of joining the heirs at law as grantors in the conveyance. In as much as after the passage of the amendment to Section 17, of Chapter 90, of the Revised Code contained in Chapter 79, Vol. 14, any doubt as to the title to be made by the trustee appointed by the Court would be relieved by the course adopted in the present case, the analogous course of joining all the administrators was adopted. The case of Lockwood vs. Stradley will be found re-printed in 12 Am. Dec. 97, with a very full note upon this subject. See also, Curran Admx. vs. Ruth, ante p. 27.