Opinion
July Term, 1811.
From Rowan.
1. Power of executors to sell lands. Presumed renunciation of an executorship. A being seized in fee of lands, and possessed of personal estate, made his will, and directed "his executors therein named to pay and discharge all his just debts, and to sell and dispose of whatever they might think proper and best of his estate to satisfy his debts." He appointed B, C and D executors, and died in 1778. B and C qualified, and undertook the execution of the will. D never qualified, nor intermeddled with the estate, nor formally renounced the executorship. In 1798 B and C sold the lands to pay the debts, D being alive and not refusing to join in a deed to the purchaser: Held, that the deed of B and C was good to pass the title, they being answerable to creditors for the debts, and the testator having left it to the discretion of his executors to pay the debts out of any part of his estate they might think proper. The power to sell is attached to the executorship, and not to the persons named executors.
2. The Court will presume a renunciation after such a lapse of time. A formal renunciation in open court is not necessary; it only affords easier proof of the fact.
JOHN HUNTER, being seized of the lands in question, devised as follows, to wit: "I order my executors hereafter named to pay and discharge all my just debts and that they sell and dispose of whatever they think proper and best of my estate, to satisfy my said debts." He appointed Alexander Martin, James Martin, James Hunter, John Tate and Edward Hunter, executors of his last will, which was proved in Guilford County Court, at February Term, 1778, and James Martin, James Hunter, John Tate and Edward Hunter qualified as executors. Alexander Martin never qualified, nor in any way intermeddled with the estate of the testator, nor did he ever formally renounce the executorship. John Tate and Edward Hunter having died, James Martin and James Hunter, the surviving acting executors, in 1798, for the purpose of raising money to discharge the testator's debts, sold the lands in question, (85) and by a deed of bargain and sale conveyed them to the lessors of the plaintiff, Alexander Martin being then alive and having not refused to join in the conveyance. The question submitted to this Court was, Whether, as Alexander Martin had neither formally renounced the executorship nor joined nor refused to join in the sale and conveyance of the lands, the lessors of the plaintiff were entitled to recover.
The lands in question were sold to pay the debts of the testator. He did not set apart a particular portion of his estate for the payment of his debts; he has left it to the discretion of his executors to pay his debts from the sales of any part of his estate. The executors are to pay the debts; creditors look only to such of them as undertake the execution of the will, and it seems necessarily to follow that those who qualify and undertake the execution of the will shall be competent to do what the will directs to be done. The power to sell is attached to the executorship, not to the persons named as executors. But were it otherwise, the Court will necessarily presume, after such a great lapse of time, that Alexander Martin has virtually renounced the executorship. A formal renunciation in open court is not indispensable; it only provides an easy method of proving the fact. Other evidence may be equally satisfactory; and none could be more so than lying by for the space of twenty years, and during that time never intermeddling with the estate. Let judgment be entered for the plaintiff.
Cited: Wood v. Spark, 18 N.C. 395.
(86)