The Orphans Legacy, Part 3 · Chapter 16
CHAP. XVI. Of Deviſes touching the Sale of Land by Executors or others.
1. The mean Profits of Lands Deviſed to be ſold, are not Aſſets in the Executors hands, unleſs the Teſtator ſhall ſpecially ſo Appoint it.
2. The Heir, and not a ſtranger though appointed in the Deviſe, ſhall take the advantage of a Breach of Condition annexed to a Deviſe touching ſale of Lands.
3. Where the Executors have only an Authority, and not an Intereſt in the Lands Deviſed to be ſold, the Heir of the Deviſor ſhall have the mean Profits thereof till it be ſold.
4. Otherwiſe, where the Executors have an Intereſt; in which caſe the Money or Proceed upon the ſale, but not the mean Profits, ſhall be Aſſets in their hands.
5. Several Deviſes touching ſales of Land, with or without the Aſſent of another.
6. By the word [Appurtenances] ſhall paſs in a Deviſe Lands commonly uſed with a Meſſuage.
7. A Copy-holders Caſe of Deviſe of Land to his Wife.
8. Where one, who hath but an Eſtate for life, and no Intereſt to ſell, may yet have an Authority to Appoint who ſhall ſell the Lands Deviſed.
9. In what Caſe relating to this matter a Prohibition may Lye, or not.
10. A Caſe of Law, wherein one Executor alone (where there are two) can not ſell the Land Deviſed.
11. How a ſale of Lands Deviſed to be ſold, may be void for want of ſufficient Authority.
12. In what caſe a Sale of Lands Deviſed to be ſold, may be made by one Executor, where there are two Appointed by Name.
13. Where there is an Intereſt as well as an Authority and Truſt, the Executor of the ſurviving Executor may ſell the Lands of the firſt Teſtator Deviſed to be ſold.
14. Executors, who Refuſe to Adminiſter the Goods, may yet ſell the Teſtators Lands, Deviſed to be ſold.
15. Lands Deviſed to be ſold by Executors, the one Refuſing, the other may ſell, but not to the Refuſer.
16. A Sale by ſome only of the Executors is void, where there is a ſpecial and Joynt-Truſt.
17. The Difference between an Authority, and an Intereſt in Executors in point of Sale.
1. IN all Caſes of Deviſes of Land to Executors to ſell the ſame, it is moſt Prudential to make it as clear and certain as may be (that is) That the Executors or the Survivor of them, or ſuch or ſo many of them as take upon them the Probat of the Will (if his intent be ſo) ſhall ſell it. aCo. ſup. Lit. 112. 113.And it is ſafer to give only an Authority than an Eſtate: unleſs his meaning be that they ſhall take the Profits of the Land until the ſale; And if he do ſo, then it is Requiſite that he Appoint that the mean Profits until the Sale ſhall be Aſſets in their hands; for otherwiſe it ſhall not be ſo.bBrowne 1. part. 34. 2. pt. 47. 100.
2. If one Deviſe Land to others to the intent that with the Profits thereof they ſhall Educate Children, or pay ſuch Sums of Money or the like. In this caſe the Deviſees muſt do accordingly, or they may be compelled thereunto. cCo. 6. 16.And Regularly the Heir, and not a Stranger, ſhall take the Advantage of a Breach of a Condition annexed to Deviſes touching ſale of Lands. And therefore if one Deviſe Land to another and his Heirs, Provided that he pay 100 l. to A. B. Otherwiſe that the Land ſhall remain to C. D. and his Heirs; in this caſe, if the Deviſee do not pay the Money, C. D. ſhall not take Advantage of it, nor have the Land according to the Deviſe, but the Heir of the Deviſor ſhall enter, and have it, and Eject the Deviſee.dDyer. 33. 348. 126. 128.
3. If the Teſtator intending to have his Land or part thereof ſold, for the payment of Debts or Legacies, doth Deviſe the ſame in this manner, viz. I will that my Executors, or that A. B. and C. my Executors ſhall ſell my Land. eCo. ſup. Lit. 236. 112, 113. 15. H. 7. 12. Dyer. 177. 219. Kelw. 40. 45. and 107, 108. Perk. §. 542, 543. Lit. Broo. §. 371. Vid. ſup. in pt. 2. cap. 27.In this caſe the Executors have only an Authority and no Intereſt, For which reaſon the Land in the mean time Deſcends to the. Heir of the Deviſor, who ſhall enjoy the Profits thereof until it be ſold; In which caſe alſo the Executors may ſell it when they pleaſe, unleſs they be haſtned thereto by order of Court; And are all to joyn in the Sale; Inſomuch that if one or more of them dye before the Sale, the ſurviving Executors, or the Executors of the deceaſed Executors may not ſell it by this Authority. The Caſe is the ſame if any of the Executors Refuſe the charge of the Will; in which Caſe the reſt of the Executors which accept the ſaid charge, may not alone ſell the Land, unleſs the words in the Will be, That his Executors or ſome of them ſhall ſell it: But now by the Stat. of 21. H. 8. cap. 4. Some of them may ſell it without the reſt, in caſe any of the Executors dye before the Sale.
4. But if the Teſtator Deviſe the Land in this manner, viz. I give my Land to my Executors to be ſold, &c. In this caſe the Exeeutors have as well an Intereſt in the Land, as an Authority to ſell it; And therefore it doth not here deſcend unto the Heir as in the former caſe, but the Executors ſhall keep it till the Sale, and may ſell it when they will; ſo as it be within any competent or convenient time; for otherwiſe the Heir may Enter and Eject them, by a Condition in Law annexed to the Intereſt. And in this caſe the mean Profits until the Sale is no Aſſets; but the Money or Proceed upon the Sale ſhall be Aſſets in their hands. And in this caſe, if before the Sale one or more of the Executors dye or refuſe, the reſt may ſell it, for the Eſtate ſurviveth; But it is ſuppoſed they may not ſell to him that doth refuſe the charge of the Will; Neither may they in either of theſe Caſes transfer their power of ſelling to any other, nor keep the Land themſelves, though they pay the value thereof with their own Money.
5. If the Deviſe be, that the Executors ſhall ſell with the Aſſent of A. B. in this caſe if A. B. dye before he Aſſent, the Executors can not ſell; and in his life-time they can not ſell, without his Aſſent. fBrownl. 2. Rep. 100.And if one Deviſeth that his Lands ſhall be ſold to pay his Debts, and ſay not by whom, in this caſe it ſhall be ſold by his Executors; Or if one Deviſe all his Land except Ten Acres, which he doth appoint to pay his Debts; by this Deviſe his Executors or the ſurvivor of them, may ſell the ſaid Ten Acres. But if one ſay by his Will that A. B. ſhall have as well the Guardianſhip and Education of his Children, as the diſpoſing, letting, and ſetting of his Lands; in this caſe A. B. hath not power to ſell the Land. gPerk §. 547. Dyer. 371. 26.Or if one Deviſe that his Land ſhall be ſold after his Wife's death by his Executors with the Aſſent of A. B. And make his Wife and another his Executors, and dye, and after A. B. dye; In this caſe the Land can not be ſold, for the Authority is determined.hDyer. 219.
6. Suppoſe a man ſeiſed in Fee of a Meſſuage, with which certain Lands have been occupied time out of mind, give his Inſtructions for the making of his Will; & inter alia declares, That his meaning is, that his ſaid Meſſuage and all his Lands in W. ſhall be ſold by his Executors; And the party that writes his Will, Pens it in this manner, viz. I will that my houſe with all the Appurtenances ſhall be ſold by my Executors; the Deviſor dyes, The Executors ſell part of the Lands: By this Deviſe ſuch Sale is good, and the Lands do paſs; for the words [with all the Appurtenances] are effectual to enforce the Deviſe, and extend to all the Lands; ſpecially becauſe the Deviſor gave Inſtructions accordingly.iHill. 28. Eliz. B. R. Higham & Harewoods caſe. Leon. Rep. 34. vid. 3. Eliz. Plow. Com. 210. Sanders and Freemans caſe.
7. A Copy-holder, Deviſeth his Land to his Wife for her life, and that after his death, the Wife or her Executors ſhould ſell the Land, and Surrendred to the uſe of his Will, which was Entered thus, viz. To the uſe of his Wife for life, Secundum formam ultimae voluntatis. In this Caſe ſhe hath an Eſtate in the Land to her own uſe for her life, and alſo an Eſtate in Fee to ſell it; otherwiſe the clauſe (ſecundum formam ultimae voluntatis) ſhould be void.kMich. 29. Eliz. B. R. Godbolt. 46.
8. A man Deviſeth by his Will his Lands to his Wife, and if ſhe have Iſſue by the Deviſor, that his Iſſue ſhall have it at his age of 21 years, and if the Iſſue dye before that age, or before his Wife, or if ſhe have no Iſſue, that then ſhe ſhall chooſe two Atturneys, and ſhe to make a Bill of Sale of any Lands to her beſt Advantage. In this caſe ſhe hath thoſe Lands for life, and ſhe having no Iſſue, hath not any Intereſt to diſpoſe, but hath an Authority to nominate two who ſhall diſpoſe of the Lands, and they may make Sale thereof.lMich. 5. Jac. B. R. Beale and Shepheards caſe. Cro. 2. part. 199.
9. A man did Deviſe his Lands which were held in Socage to be ſold by his Executors, and that the Money thereof coming ſhould be diſpoſed of in payment of ſpecial Legacies which he Appointed by his ſaid Will; the Executors ſold the Lands. One of the Legatees (after the Will was Proved) ſued the Executors in the Eccleſiaſtical Court for his Legacy; whereupon, a Prohibition was prayed: It was reſolved in that Caſe. (1) That the Money was Aſſets in the Executors hands. (2) That there was no Remedy for it but by Suit in the Eccleſiaſtical Court, and therefore a Prohibition did not lye in the Caſe. mTrin. 9. Eliz. Dyer. 264But Querie of the ſecond payment; for it was held by all the Juſtices of both Benches nMich. 4. & 5 Mary. Dyer. 152.Where a man Deviſeth that his Executors ſhall ſell Lands, and of the Money coming ſhall give ſuch a Portion to his Daughter, That this was not a Legacy becauſe going out of Lands, and that Suit did not lye for it in the Eccleſiaſtical Court; But an Accompt lyes at Law for the Money; And therefore in that caſe a Prohibition was granted to ſtay the Suit in the Eccleſiaſtical Court.oDyer. 151; 152.
10. A Deviſe was made to A. B. for life, the Remainder to C. D. in tayle, and if C. D. dye without Iſſue of his body, that then the Land ſhall be ſold by his Executors; he maketh two Executors and dyeth; A. B. dyeth; C. D. dyeth without Iſſue of his body; In this caſe it ſeemeth that one of theſe Executors alone can not ſell the Lands.pGoldesb. 2. pl. 4.
11. A man Deviſed his Lands to his Wife for term of her life, the Remainder to D. his Daughter in tayle, and if ſhe dyed without Iſſue, that then after the death of his Wife, the Lands ſhould be ſold for the beſt value by his Executors with the Aſſent of A. and B. And made his Wife and a Stranger his Executors, and dyed; the Wife Entered and dyed; A. and B. dyed; and the Executor who ſurvived ſold the Land alone: The Opinion of the Court was, That the Sale was not good, becauſe he wanted ſufficient Authority.qMichal. 5. Eliz. Dyer. 219.
12. A man ſeiſed of divers Mannors and Lands, Deviſed all the ſaid Mannors and Lands to his Siſter and her Heirs for ever, Except out of this General Grant my Mannor of R. which I do Appoint to pay my Debts; and made two Executors by Name and dyed. One of the Executors dyed; the other took upon him the charge and Execution of the Will, and afterward ſold the Mannor of R. for 300 l. for the purpoſe aforeſaid, in Fee. It was the Opinion of the Court, that he might well ſell it; for by the Circumſtances it appeareth, That ſuch was the Teſtators intent; and not to leave the Reverſion to Diſcend to his Heir, but to truſt his Executors with the Sale of it, for the payment of his Debts.rMich. 23. Eliz. Dyer. 371.
13. A. made B. and C. his Executors, and by his Will appointed, that they ſhould have and hold the Iſſues and Profits of his Lands, until his Heir ſhould come to the age of 21 years, to the intent that the Executors with the Profits thereof, ſhould pay his Debts and Legacies, and bring up his Children. One of the Executors dyed, the ſurviving Executor made his Executor, and dyed alſo the Heir being within age. It was the Opinion of the Court in this caſe, that the Executor of the ſurvivor might receive the profits of the Lands, and diſpoſe of them during the Non-age of the Heir, becauſe it was an Intereſt in the Executors, and not an Authority or a Truſt only.sHill. 2▪ Eliz. Dyer. 210.
14. If a man hath Feoffees, and makes his Will That his Executors ſhall alien his Land; if the Executors Refuſe the Adminiſtration of his Goods, yet they may ſell the Lands, becauſe the Will is not of a thing Teſtamentary; But the Executors have not a power to meddle with the Land, unleſs ſuch a ſpecial power be given to them. If a man makes his Will of his Lands, and that his Executors (without naming them by their proper Names) ſhall ſell them, if they refuſe to be Executors, yet they may ſell the Land: But if a man makes his Will, that his Lands which his Feoffees have, ſhall be ſold, and doth not ſay, by whom; the Executors ſhall ſell the ſame, and not his Feoffees; becauſe the Moneys which come by the Sale, ſhall be Aſſets in the hands of the Executors; which is a proof that they may ſell them: And if his Will be, That the Executors ſhall ſell the Lands, before the Alienation the Heir may take and Receive the profits thereof; and if no Sale be made, the Heir ſhall hold the Land for ever.tMich. 15. H. 7. 12.
15. A man Deviſeth, That his Executors ſhall ſell his Lands: Now by the Stat. of 21. H. 8. cap. 4. If the one refuſeth, the other may ſell the Lands; but the Sale can not be made to him who refuſeth.u27. Eliz. in Benloes caſe Adjudged. vid. Co. 1. part. Inſtit. 113.
16. A man made his Will, and made A. B. C. D. his Executors, and Deviſed his Lands to the ſaid A. B. C. D. by their ſpecial Names, and to their Heirs; And further Deviſed, that the Deviſees ſhould ſell the Lands to F. G. if he would give for it before ſuch a day 100 l. and if he would not, that then they ſhould ſell it to any other, to the performance of his Will, viz. the payment of his Debts. F. G. would not give the 100 l. one of the Executors refuſed to intermeddle, the other three ſold the Land; It was the Opinion of the Court, that the ſame being a ſpecial and a Joynt-Truſt, that it could not ſurvive, and that the Sale by the Three was void.wMich. 29. Eliz. B. R. Bonifant and Sir Richard Greenfields caſe. Godbolt. 77. vid. 26. Eliz. B. R. Vincent and Lees caſe. in Co. 1. part. Inſtit. 113. acc. Theſe and other Caſes relating to this Subject, are Reported in Hughs Abridgment. Tit. Deviſe.
17. By the Premiſes it is Evident, That if a man Willeth that his Executors ſhall ſell his Lands for the payment of his Debts, and they all dye but one, and the ſurvivor make the Sale, the Vendee ſhall not have the Land, and that the Law is otherwiſe, if the Lands were Deviſed to the Executors to be ſold; The Reaſon is as aforeſaid, becauſe in the former caſe the Executors have only an Authority, in the other caſe they have an Intereſt. But if a man maketh two Executors, and willeth that they ſhall ſell the Lands for the payment of his Debts; And they ſell it only for term of life, the Remainder to one of themſelves, and the Vendee dyeth; he in the Remainder may Enter. xDyer. in Stat. Wills. Sect. 3. §. 10, 11Sed Q.