The Orphans Legacy, Part 2 · Chapter 27
CHAP. XXVII. Of the Executors power in Sale of Lands deviſed to be ſold.
1. The difference between a Deviſe, that the Executors ſhall ſell the Land; and a Deviſe of the Land to the Executors to be ſold.
2. The profits of Land Deviſed to be ſold are not Aſſets in the Executors hands for a time before ſuch Sale.
3. In what Caſe the Heir may or may not enter upon unſold Lands deviſed to be ſold.
4. Executors accepting may without others Refuſing, make a good Sale of Lands deviſed to be ſold.
5. In what Caſe ſurviving Executors cannot ſell Lands deviſed to be ſold.
1. WHere Land is by Will appointed to be ſold, neither the money raiſed, nor the profits ſhall be accounted as any of the Teſtators Goods or Chattels. aStat. 21 H. 8. cap. 5.And when a man deviſeth, that his Executors ſhall ſell the Land, there the Land in the mean time deſcends to the Heir; bPerk. tit. Deviſes, fol. 104, 105.and until the Sale be made the Heir may enter and take the Profits. cIbid. & Broo. Abridg. tit. Deviſe, nu. 19.But when the Land is Deviſed to his Executors to be ſold, there the Deviſe taketh away the Deſcent, and veſteth the State of the Land in the Executors, and they may Enter and take the profits, and make ſale according to the Deviſe. dKelw. Rep. fol. 107, 108. …. 25▪Alſo when a man deviſeth his Land to be ſold by his Executors, it is all one as if he had deviſed his Land to his Executors to be ſold, becauſe he then likewiſe deviſeth the Land whereby he breaketh the Deſcent.
2. If a Teſtator doth appoint by his Will his Executors to make ſale of certain Lands for the uſe and behoof of the ſaid Teſtator, and the Lands after the Teſtators deceaſe happen to remain ſome time unſold, the Profits thereof in the ſaid time before ſuch ſale made ſhall not be Aſſets in the Executors hands, unleſs the Teſtator did deviſe, That the mean Profits till the Sale ſhould be Aſſets in their hands; for otherwiſe they ſhall not be ſo, though the Executors in this Caſe have no Eſtate or Intereſt in the Land, but only a bare and naked Power and Authority.eCok. Inſt. lib. 2. cap. 10. Sect. 169. & lib. 3. cap. 5. Sect. 383.
3. But if the Executors having power to ſell the Land of the Teſtator, defer the Sale thereof after the offer of a reaſonable price, converting the Profits thereof to their own uſe, the Heir may lawfully Enter to the Land, and put out the Executors fDyer fol. 371. nu. 3. Fulbeck Paral. lib. 1. fo. 41.if they have no further Authority or Intereſt than only to ſell the Land and diſtribute the money, for then the Frank-Tenement doth deſcend to the Heir, gKelw. ubi ſupra.and the Executors are bound to perform the Deviſe in convenient time: But if the money for the ſame be to be diſtributed in pios uſus, then the Frank-Tenement is in the Executors after the death of the Teſtator, and not in the Heir. hIbid. Kelw.So that in ſuch Caſe he may not Enter as in the former. Yea, if Lands Deviſed to be ſold be not accordingly ſo done by the Executors, the Law will then enforce them to ſell the Lands ſo ſoon as they can, becauſe the mean Profits in that Caſe taken before Sale are not Aſſets to charge the Executors as compellable to pay debts of the ſame: But if a man Deviſe, that his Executors ſhall ſell his Land, there they may ſell it at any time, for that they have but a bare and naked Power and no Profit.
4. If many Executors be named in a Will, wherein Power is given to them to ſell Land for any purpoſe; and ſome of theſe Executors refuſe the Executorſhip: In this Caſe the other Executors who ſtand to the Will, may diſpoſe and ſell the Land without the conſent of the other who ſo refuſed the Executorſhip. iSt. H. 8. & Swinb. part 6. §. 3. nu. 7.But Note, That an Executors Executor cannot ſell the Land of the firſt Teſtator (who by his Will gave Power to his Executor to ſell the ſame) unleſs there be a Co-Executor ſurviving.
5. Although the ſurviving Executor may ſell the Land which a Teſtator doth bequeath to his Executors to be Sold, becauſe as the State ſo the Truſt ſhall ſurvive; yet in caſe the Executors in that part of the Will impowering them to Sell be particularly Named, each by his particular Name, and one of them refuſe and dye before Sale made, then the Survivors cannot ſell the ſame, kCoke Inſt. lib. 2. c. 10. Sect. 169.becauſe the words of the Teſtator (one of the Executors refuſing or being dead) cannot be ſatisfied, unleſs the Teſtator expreſs in his Will a Power to the Survivors or Survivor of them, or to ſuch or ſo many of them as take upon them the Probate of the Will; without which words (the Executors being particularly Named) it is otherwiſe: But if the Land to be Sold be left to his Executors generally, not particularizing their Names, then Sale made by ſome of them only, in this Caſe is good; for that now by the Statute of 21 H. 8. cap. 4. it is Provided, That where Lands be Willed to be ſold by Executors, though part of them refuſe, yet the reſidue may ſell. But here Note, That they may not ſell to him that ſo refuſed, becauſe he is yet a party, and privy to the Laſt Will, and remains an Executor ſtill ſo long as any Co-Executor lives. For it was the Opinion of the &c.
Note, that by the Opinion of the Juſtices, if a man makes his Laſt Will, and Wills that his Executors ſhall ſell his Land, and Tr. 27 H. 8. Anderſ. Rep. Caſ 52.Deviſes his Land to his Executors to be ſold, and one of the Executors refuſe the Adminiſtration of the Teſtators Goods before the Ordinary, the other Executors cannot ſell the ſaid Land to the Executor ſo refuſing the Adminiſtration, by the Statute 21 H. 8. cap. 4. For that Executor notwithſtanding ſuch his refuſal is ſtill a party, and privy to the ſaid Teſtament, and is one of the Executors at his pleaſure.
It was adjudged in B. R. between Vincent and Lee, where a man deviſed, That his Sons in Law ſhould ſell the Reverſion of his Hill. 25 Eliz. Vincent verſ. Lee. Moo. Rep. n. 291.Land, without mentioning their particular Names; if ſome of them dye, that the others may ſell.
Upon a ſpecial Verdict, the Caſe was; A man ſeiſed of Lands in Poſſeſſion, and of other Lands in Reverſion, upon an Eſtate Tr. or Hill. 35 Eliz. Mich. 38, & 29 Eliz. C. B. Townſend verſ. Wale. Cro. Rep. par. 3. Pl. 54.for life, Deviſeth by his Will in writing, That his Executors ſhould have all his Lands Free and Cuſtomary in D. for Ten Years to perform his Will, and the Will of his Father, with the Profits thereof; and that after the Ten Years, his Executors or any of them ſhould ſell it for the payment of his Debts. He makes Three Executors and dies: The one dies, the Ten Years expire, Tenant for Life dies; the Two ſurviving Executors ſell the Land, &c. Spurling. This Sale is not good: (1.) The Reverſion of the Eſtate for Life paſſed not, becauſe he had other Lands there to ſatisfie the words, and it was not his intent to paſs it, becauſe there were not any Profits to be taken thereby. (2.) The Sale by the Two ſurviving Executors is not good, for it ought to have been by all, or by one of them only. But the Court reſolved to the contrary in both; wherefore it was adjudged accordingly.
The ſame Caſe is Reported by Anderſon, thus; viz. J. T. Hill. 35▪ Eliz. Townſend and Wale's Caſe. Anderſ. Rep. par. 2. Caſ▪ 44.brought Ejectione Firmae againſt J. W. and others. The Defendants pleaded Non Culp. whereupon Special Verdict was given, the which in effect was, That one Smith being ſeiſed of Twenty Acres of Land, made a Leaſe thereof to one for Life; and being alſo ſeiſed of Sixty other Acres, made his Will in manner following, viz. I Will and Charge my Executors, and every of them, to fulfill my Fathers Will, and this my Laſt Will; (in which were divers Legacies) In Conſideration whereof I give all my Lands and Tenements to my Executors, and they to take the Profits thereof by the ſpace of Ten Years; and thoſe Ten Years ended, I will the ſame to be ſold by my ſaid Executors, or by one of them. And made Three Executors, and died; after the Tenant for life died; one of the Executors died alſo. The Two Executors Enter on the Sixty Acres, and receive the Profits thereof for Ten Years, but Entered not on the Twenty Acres; but after the Ten Years ended the ſurviving Executors ſold the Twenty Acres to J. H. who Entered and Leaſed the ſame, whereon the Action is brought. It was ſaid, That the Executors did not Sell; but it was adjudged, that the ſurviving Executors might Sell; For it appeared that the Intention of the Teſtator was, That the Land ſhould be ſold for the performance of his Will, which the ſurviving Executors might Execute, and conſequently do what the Teſtator appointed in order thereunto.