Clark v. Williamson , 2 Rawle 215 ( 1828 )

The opinion of the court was delivered by

Tod, J.

— I cannot say that the third assignment of error, relative to the effect of the parol sales, hás been sustained by the plaintiff in error. With one exception, neither the points of law submitted to the court below, nor the answer to them, have.been placed on the record. If the shares of Thomas and John, are to be considered as real estate at the'.time of the judgment against them, and not as a mere right to the proceeds of the money, then, clearly, by the statute of frauds the purchaser at sheriff’s sale is not to be affected by any.secret transfer by parol, .particularly if the fact was that Thomas and John were in possession of their shares at the time of the judgment.entered against them. This matter we look up'on as settled by the case of Withers’s Appeal, 14 Serg. Rawle, 185. The main point in the cause, then is, Had M'Knight and wife, under the will, a subsisting power to sell? Concurring,, as I do, most fully in most of the reasoning of the court below, yet on this subject it does appear .to. me that .in the hurry of a jury trial they have mistaken the law. I. think there was no power of sale in the surviving executrix and her husband .at any time. - If there had been such authority in them at one time, I would think the power was ended when all the children had arrived ,’at full age. There is no doubt of the law as laid -down in Toller’s Eaw of Executors, 240: — If a married woman be an executrix, or administratrix, the husband has a joint interest with her in the. effects of the deceased, such as devolves.the whole administration upon him, and enable's him to act in. it-to all purposes; with or without her assent.” But, in defining the extent of a power, the words of the grant of it are to be chiefly, or rather solely regarded. If there is a general ride, without any exception applicable to last wills, it is that the declared intent of the testator shall be effectual, so far as it opposes no principle 6f law. To make out the intent, all the parts of the will must be taken together. .441 give unto my bel loved wife, during her life time, or widowhood, all my, estate, to be by her applied towards-raising, fyc. And, in case she should see cause to.marry, she is only to have her bed, and bedding, and an equal share with the children, fyc. Jlnd the remaining executor, or guardians of the'children, to take care of their parts." His meaning seems to be not'to trust his children to the care, nor their property to the disposal of any future husband of his widow. That he intended a perpetual guardianship to be lodged in -a step-father must,'I think, be out of the question. Nor are these provisions of the testator to be looked upon as overruled and defeated by thé subsequent parts of the will giving power to-the executors,‘or the survivor of them, to sell and convey. There is, I take it, no contradiction. The testator seems to.have provided first for the case of his wife’s marrying again, and next for the case of her continuing a widow, giving her the fullest power in the latter event, and no power at all in the former. But no matter who were the executors; even if Reynolds himself had been living, he could not, I think, legally sell the land in 1Í322. The object of.the power had' then ceased. All the children had then attained full age. Raising arid schooling were them at an end: therefore, so was the power. The decisions have been frequent on this point. Without any precedent, the direction in the will, to lay out the over-plus in other property, or to the best advantage,’until they (the children) were empowered to call for it, would seem to Show that the only sale he meant was a sale while the children, or some of them, were unable to sell,for themselves; and that there»was a ter-.' mination of the power implied in the very mature of it; just as a power to sell for payment of debts would imply that no lands are tó be sold from the heirs after the debts are all paid. To support the sale to Mf’Knight, the acts of assembly of the 12th of March, 1800, and 31st of March, 1792, have been cited. Those acts do expressly direct that a power to sell lands shall, pass to a surviving executor; or to an administrator with the will annexed, and that a naked power to sell shall be as available as a power coupled with an interest. In my opinion these acts of assembly are misapplied to the«present case. They were formed to obviate inconveniencies, to remove doubts, and settle'points-of law altogether different from any that are contested here. This case depends upon the will. Certain I am it would be a perversion of the two acts of assembly, .so to construe them as to oblige a man.to intrust the guardianship of his children to another, in spite.of all the directions he can put into his will to the contrary. The opinion of the court is, that the judgment be reversed, and that a venire facias de novo be awarded. -

Judgment reversed, and a venire facias de novo awarded.