Cohea v. Jemison

Cooper, J., delivered the opinion of the court. The general rule is that a devise of lands to executors to sell passes the interest in it; but that a devise that lands shall be sold by executors confers but a naked power. 7 Am. & Eng. Enc. Law, 275. But in the absence of language conferring an estate upon the executors an estate by implication will arise where from the nature of the trust conferred, it is necessary that an estate should exist in the trustee for its execution; and where an estate is expressly given, it will be limited in duration to the trust to be performed, if a precise period for its termination can be shown. 3 Jarman on "Wills, chap. 34. Clearly Cohca did not expressly devise the lands in controversy to his executors, and, if they took any estate in them, it arose by implication from the power and duty of selling the lands and distributing the proceeds. The better view, and that supported by the weight of authority, is that a mere power to sell land and distribute the proceeds does not require any estate in the executor and therefore none exists by implication, and consequently that until the sale the title and right of possession remain in the heir-at-law. Greenough v. Wells, 10 Cush. (Mass.) 571; Fay v. Fay, 1 Ib. 93; Herbert v. Nicol, 1 Saxt. (N. J. Eq.) 141; Ferebee v. Proctor, 2 Dev. & Bat. 439; Hall v. [518] Burr, 9 Johns. 104; Haskell v. House, 1 Const. Reps. (S. C.), 106 ; Bergen v. Bennett, 1 Cain Cas. 1; Bogert v. Schauber, 7 Cow. 187; Romaine v. Hendrickson, 24 N. J. Eq. 21; 1 Williams on Executors, 725; 7 Am. & Eng. Enc. Law, 725. The discretion given to the executors to carry on the farm of the testator for one year could in no event confer upon them an estate by implication for a longer time than the possession was necessary for the purpose indicated. It follows that the legal title to the land sued for remains in the heirs-at-law of the testator, and the court erred in excluding the plaintiffs’ evidence. Reversed and remanded.