SECTION VII. MISCELLANEOUS POINTS OF THE GENERAL SUBJECT. WHEN a will charges real estate with the payment of debts, all debts contracted either before or after the making of the will, and not at the testator's death barred by the Statute of Limitations, 21 James I. c. 16, are, unless a contrary intention clearly appears in the will, a charge on the estate. (d) In Clarke v. Sewell, Lord Hardwicke ad[ 69 ] mitted, that, suppose a man devises all his real estate to A., and afterwards a particular farm to B., this would be an exception out of the generality to A. "But," continued his Lordship, "it is otherwise where there is a charge by a testator upon all his estates for payment of debts; for there the devisee must take, subject to that charge."(e) If lands are devised in fee to the testator's heir at law, the heir will take by descent, and not by purchase, although by the will the lands are charged with the payment of either debts,() or legacies.(g) A person by his will, charged all his real estate with the payment of debts, and devised to his son and heir all the residue of his estate, real and personal. After making his will, he purchased several copyhold estates, held of the manor of W., which he surrendered to such uses as he should, by will or any codicil, thereto, appoint; and he subsequently made a codicil, and thereby devised to the same son all his copyhold estates within the manor of W. On a creditors' bill against the son, Sir W. Grant decided, that the codicil was a republication of the will, so as to make the after purchased copyholds subject to the payment of the testator's debts. (h) Lands held in trust will pass under a devise in general words, as lands, tenements, and hereditaments, contained in the will of a surviving trustee, unless an intention not to include them appears in the will; (i) and such intention is, it seems, inferred, where the testator charges the lands devised, with the payment of debts, or legacies; and consequently the trust estate will not in these instances pass under the will.(j) OF A POWER TO RAISE MONEY FOR THE PAYMENT OF DEBTS, DEBTS AND LEGACIES OR LEGACIES ONLY.(a) A DISPOSITION of land for the payment of debts, or debts and legacies, (d) Brudenell v. Boughton, 2 Atk. 274; Bridgman v. Dove, 3 Atk. 201; Hannis v. Packer, Amb. 556; Habergham v. Vincent, 1 Ves. jun. 411; Rose v. Conynghame, 12 Ves, 37, 38. (e) 3 Atk. 101. Plunket v. Penson, 2 Atk. 290; Young v. Dennet, 2 Dick. 452; Allen, or Allan, v. Heber, 1 W. Bl. 22, 2 Stra. 1270. The authorities in this, and the next, note overrule Gilpin's case, Cro. Car. 161, and Brittam, or Brittane, v. Charnock, 2 Mod. 286, 1 Freem. 248. (g) Haynsworth v. Pretty, Cro. Eliz 833, 919, Mo. 644; Clerk v. Smith, 1 Salk. 241; Plunket v. Penson, 2 Atk. 290; Allen v. Heber, 1 W. Bl. 22; Emerson v. Inchbird, 1 Ld. Raym. 728; Chaplin v. Leroux, 5 M. & S. 14; Langley v. Sneyd, 3 Brod. & B. 243, 1 Sim. & St. 45. (h) Rowley v. Eyton, 2 Mer. 128. (i) Lord Braybroke, v. Inskip, 8 Ves. 417. (j) Roe v. Reade, 8 Durn. and E. 118, cited 8 Ves. 437; Ex parte Morgan, 10 Ves. 101, (a) On the general subject of this section, see, in addition to the authorities, referred to or legacies only, is frequently held not to pass an estate in the land, but to confer a power only, bare of any estate, to raise money for the purposes intended.(b) The subject of a power of this description may here be treated of under the following heads: SECT. I. Of the Party to Sell under the Power. II. Of the Statute 21 Henry VIII. c. 4. III. Of the Party to Sell, when no Person is by the Will named for this purpose. IV. Of the Time for Sale, when the Property empowered to V. Of Descent to the Testator's Heir at Law until Sale. SECTION I. OF THE PARTY TO SELL UNDER THE POWER. On the party to sell under the power, there are, it will be seen, some extremely refined and important distinctions. *If in a bare power to sell to pay debts, or debts and legacies, [ *71 ] or legacies only, the testator appoints several persons to sell, as by the words, "I will that A. and B. shall sell," or, "I will that A. B. and C. shall sell," these parties being the executors, or not the executors of the will; or by the words, "I will that my executors shall sell,” here if all the parties sell, they must all join in the sale and conveyance; (c) and one of them cannot sell and convey one part of the lands, and another of them another part to the purchaser.(d) If the words of the power are, "I will that A. and B. shall sell," and other persons, and not A. and B., are appointed the executors of the will, and after the death of the testator A. or B. dies, it is clear that at law the survivor cannot execute the power.(e) If the words are, "I will that my lands shall be sold by A. and B., my executors," or, "by A. B. and C., my executors," and A. dies; it seems that at law B. in the first case, and B. and C. in the second, cannot execute the power.(ƒ) If the words are, "I will that A. and B. shall sell," or, "I will that Anon. Dalison, 26, Ca. 3; 45, Ca. 36, 106; Ca. 56; Dike v. Ricks, or Ricke, Cro. Car. 335, 1 Rol. Abr. 329, pl. 9, 13; Barrington v. Attorney General, Hardr. 419; Tenant v. Brown, 1 Ch. Cas. 180; Cole v. Wade, 16 Ves. 27. Fitzh. Abr. tit. Devise, 10; 1 Rol. Abr. 329, pl. 8. (6) Culpepper v. Aston, or Austin, 2 Ch. Cas. 115, 221; Stapleton v. Colvile, Cas. T. Talb. 202, cited 2 Atk. 626; Yates v. Compton, 2 P. W. 308; Blatch v. Wilder, 1 Atk. 420, 1 West Cas. T. Hardw. 322; Lancaster v. Thornton, 2 Burr. 1027; Foone v. Blount, Cowp, 464, 466; Newton v. Bennet, 1 Bro. C. C. 135; White v. Vitty, 2 Russell, 484, 495. (c) Co. Litt. 112 b.; Bro. Abr. tit. Devise, pl. 31. (d) Plowd. Quær. Qu. 243. (e) Co. Litt. 112 b., 113 a.; Anon. 2 Dyer, 177 a., Ca. 32; Gwilliams v. Rowel, Hardr. 204. See White v. Vitty, 2 Russell, 484, 499. (f) Co. Litt. 112 b., 113 a. See Sugd. Pow. 3rd ed. 166. A. B. and C. shall sell," and these persons are appointed executors, and A. dies; it appears that at law, B. in the first case, and B. and C. in the second, cannot execute the power.(g) If the words are, "I will that my two executors shall sell;" if one of them dies, the survivor it is said, cannot at law execute the power. (h) If the words are, "I will that my executors shall sell," the testator not in this place naming them, and he appoints A. and B., or, A. B. and C., to be his executors; it must be stated to be a matter of some doubt, whether, if in the first case A. dies, or in the second case A. and B. die, the survivor B. or C. can at law execute the power, since one person only cannot satisfy the word executors, in the plural.(i) The inclination of the later authorities *seems however to be, that as the executorship, or office of executor devolves to the survi-[*72 ] vor, the authority to sell survives with the office, and consequently that the power may be executed by the survivor.(j) If the words are, "I will that my executors shall sell," the testator not naming them here, and he appoints A. B. and C. to be his executors; if A. dies, it is certain that B. and C. may, both at law and in equity, execute the power; because, being two persons, the word executors, in the plural, continues to be satisfied by the number of survivors.(k) It appears from Perkins,—that if a testator says, "I will that my executors shall sell," and appoints two executors, and one of them renounces the executorship, and the other proves the will, a sale by the latter alone is valid;(1) a case, as presently will be seen, expressly provided for by the statute 21 Henry VIII. c. 4: that if the testator says, "I will that A. and B., my executors, shall sell," and they both renounce the executorship, yet that they may sell, because they are named in such direction to sell:(m) but that if he says, "I will that my executors shall sell," without here expressing their names, and they all renounce the executorship, they cannot in this case sell:(n) that if the testator says, "I will that A., Mayor of London, shall sell," and before the sale another man is chosen mayor, A. may, notwithstanding, execute the power:(0) that if the testator says, "I will that A. my heir shall sell," and A. dies before the sale, A.'s heir *cannot sell:(p) that if he says, "I will that A. my now executor shall sell, [ *73 ] executors of A. cannot sell:(g) and if he says, "I will that my executors "the (g) Anon. 2 Dyer, 177 a., Ca. 32; Co. Cro. Eliz. 26, 3 Leon. 106, Mo. 147, Co. Litt. 112 b., 113 a. (h) Co. Litt. 181 b. (i) See Gowdchep's case, East. T. 49 Edw. III. Ca. 10, p. 16, Bro. Abr. tit. Devise, pl. 10, Fitzh. Abr. tit. Devise, pl. 8; Anon. Mo. 61, Ca. 172; Lock v. Loggin, 1 Anders. 145; Anon. Gouldsb. 2, Ca. 4.-Co. Litt. 112 b., 181 b.; also Preamble to Stat. 21 H. VIII. c. 4; and 6 Durn. & E. 396. () Perk. 550; Houell v. Barnes, Cro. Car. 282; Barne's case, W. Jones, 352.-Harg. Co. Litt. 113, a., n. (2,) 181 b., n. (3); Sugd. Pow. 3rd ed. 165, 166; 2 Prest. Abstr. 254. (k) Bro. Abr. tit. Devise, 31; Townshend v. Wale, or Whales, or Walley, Cro. Eliz. 524, Owen, 155, Mo. 341; Lee v. Vincent, Litt. 112 b., 113 a.; Rowland v. Lee, S. C., (n) Perk. 548, Bro. Abr. tit. Testament, pl. 1; Yates v. Compton, 2 P. W. 308, seems to be an authority to the same effect. See also Keates v. Burton, 14 Ves. 434; yet see Sugd. Pow. 3rd edit. 172, and ib. Append. p. 640, 641. (0) Perk. 552. shall sell," and the executors prove the will, and appoint their executors, and die before they sell, that their executors may sell; but if they make no executors, that their administrators cannot sell, for want of privity, for the sale is a thing of trust. (r) This statement by Perkins, that the executors of the executors may sell, seems to be an authority, that if the testator says, "I will that my executors shall sell," and the surviving executor appoints his executors, and dies, that his executors may at law and in equity sell. And, on the principle of privity, if he appoints one executor only, it should seem that this executor may at law and in equity sell. (s) Yet it appears if the testator says, "I will that B. and C. my executors sell," and dies, and B. dies, and C. makes M. his executor, and dies, and M. sells, this sale is at law void."() If the words of the will are, "I will that my executors shall sell," and they all renounce the executorship, it seems that an administrator with the will annexed cannot, at law or in equity, execute the power.(u) If the testator devises to A. for life, and wills that, after the death of A., the land shall be sold "by my executors, or the executors of my executors," and appoints two executors, and during the life of A. one of them dies intestate, and afterwards the other executor appoints his executors, and dies, and afterwards A. dies; it has been held that the executors of the surviving executor cannot at law execute the power. (v) If the testator devises to A. for life, and directs that, after A.'s death, the lands shall be sold by his executors, without naming them here, and makes B. C. and D. his executors; and, during *the life of A., [74] one of the executors, as B., dies; then after the death of A., C. and D. may both at law and in equity sell. (w) But if the direction is, that after A.'s death the lands shall be sold by B. C. and D., my executors, it seems that the survivors C. and D. cannot at law sell.(x) A man devised to his wife for life, remainder to K., his daughter, in tail, and if she died without issue, that then after the death of his wife the land should be sold by his executors, together with the assent of A. B., and made his wife and a stranger his executors, and died. The wife entered and died, and A. B. died, and the executor who survived alone sold the land. The question was, whether it was a good sale or not, And the Court was of opinion it was not good, for want of sufficient authority.(y) The examples which have been mentioned of a bare power in a will, to sell real estate for the payment of debts, or legacies, prove that the object, in the interpretation of the words of the will, is to fulfil the testator's intention, and that, far from adopting a strict interpretation of the will, the Courts, in order to promote the sale intended, lean very much to put a liberal construction on the words of the power. And in consequence of that object and liberal construction, it is, that although the Courts will not (r) Perk. 549. See also on a personal power, not transferrable to a new trustee appointed, Hibbard v. Lamb, Amb. 309. (s) See Perk, 550; Houell v. Barnes, Cro. Car. 382; Sugd. Pow. 3rd ed. 165, 166; 2 Prest. Abstr. 254. (t) Bro. Abr. tit. Testament. pl. 1, tit. Executors, pl. 3. (u) Isabel Gowdchep's case, 49 Edw. III. 16, Bro. Abr. tit. Devise, pl. 10, Year Book 15 H. VII. 11 b., Sugd. Pow. 3rd ed. Append. p. 640, 641; Yates v. Compton, 2 P. W. 308. (v) Anon. Mo. 61, Ca. 172, cited 16 Ves. 45. (w) Co. Litt. 112 b.; Bro. Abr. tit. Devise, pl. 31; Anon. 2 Leon. 220. (x) Co. Litt. 112 b., 113 a. interpret the will to empower a sale by any party, or any party alone, not meant to be entrusted with this authority;-as by A., if the power is given to A. and B.;(z) or by A. and B., if the power is given to "my executors," and both A. and B., who are appointed the executors, renounce the executorship;(a) or by the executors of A., if the power is given to " A. my now executor;"(b) or by the administrators of executors, if the power is given to "my executors;"(c) or by an administrator with the testator's will annexed, if the power is given to "my executors," and they all renounce the executorship; (d) or by A. "after the death of B., and without B.'s assent, if the power [ *75 ] is given to A. to sell, with the assent of B.:(e)-yet, inclined to authorize at law a sale under the power, the Courts, it appears, interpret the words to empower a sale by surviving executors, if the power is given to "my executors," and the number of surviving executors satisfies the word executors, in the plural;(ƒ) by A. and B., if the power is given to “A. and B. my executors," and both A. and B. renounce the executorship;(g) by A. if the power is given to A., Mayor of London, and before the sale another man is chosen mayor; (h) and by the executors of executors, if the power is given to "my executors;"(i) and farther, it may perhaps be stated, by a surviving executor of the testator, or even by the executors or executor of a surviving executor of the testator, if the power is given to "my executors."(j) And in any of the cases which have been mentioned, although the power cannot be exercised at law, yet certainly a Court of Equity will, while the trust implied in it exists, enforce the execution of that trust, by decreeing a sale pursuant to the testator's intention.(k) A devise to trustees or executors to sell is, it may be noticed, essentially different from a bare power given to them for the purpose. For when a person devises land to trustees or executors, in trust to sell, the will passes to the devisees the testator's estate in the land. The devise makes them joint-tenants, and therefore if one or more of them die before this tenancy is severed, the estate and trust survive to the remainder. As, if a testator devises to A. and B.," in trust to sell, and appoints them, or other persons, executors; or devises "to my executors," in trust to sell, and appoints A. and B. executors; in these, and the like, cases, if one of the devisees, as A., dies, the estate and *trust will survive to B., and he alone may consequently sell and convey [ *76 ] to a purchaser. (7) And in this place it may farther be mentioned, that where land is devised to trustees, or executors, in trust to sell, the devise (i) Perk. 549, 552. (j) Perk. 549, 550; Houell v. Barnes, Cro. Car. 382.-Harg. Co. Litt. 113 a., n. (2) 181 b., n. (3); 2 Prest. Abstr. 254. (k) Gwilliams v. Rowel, Hardr. 204; Garfoot v. Garfoot, 1 Ch. Cas. 35; Asby v. Doyl, ib. 180; Amby v. Gower, S. C., 1 Ch. Rep. 168; Pitt v. Pelham, 1 Ch. Rep. 283, 1 Lev. 304, 2 Freem. 134, 1 Ch. Cas. 176; Locton v. Locton, 2 Freem. 136, 1 Ch. Cas. 179; Yates v. Compton, 2 P. W. 308; Witchot v. Souch, 1 Ch. Rep. 183. (1) Co. Litt. 113 a., 181 b.; Jenk. Cent. C. 1, Cas. 83. |