Fredericks v. Cisco

Bryan, J., delivered the opinion of the Court. The appellees recovered a judgment in ejectment against the appellants. The evidence at the trial showed neither title nor shadow of right in the appellants ; and yet, to our great regret, we are obliged to reverse the judgment. ³⁹⁴ We will state the reasons which require us to make this decision. General John'A. Dix by his last will and testament devised and bequeathed his property as follows : “I give and bequeath to my dear wife all my estate, hoth real and personal, for her life ; at her death I direct that it be disposed of as follows : I give to my son Morgan Dix one-third of my said estate.’ ’ He then gives to each of his two daughters a third of his estate with limitations over which it is not now necessary to state.

He then appoints Morgan Dix, John J. Cisco and William S. Lawrence his executors, and then proceeds as follows : “I authorize them to sell such portions of my real estate as they may think it advantageous to dispose of, and to execute all such legal instruments as may be necessary to give perfect title to the purchaser ; ’' and then gives directions for the investment of the proceeds of sales. These executors are the appellees. The land which is the subject of this controversy is alleged to .have been owned by the testator in fee simple at the time of his death. The will clearly gave a legal estate for life to the widow, with legal estates in remainder to his children.

It is impossible to construe the authority to sell given to the .executors, as vesting a legal estate in them, and displacing those previously given to the wife and children. The identical question was decided in Guyer vs. Maynard, Ex’r, 6 Gill & J., 423. The Court says : “In the will of James Williams, his real estate is not devised to his executors, to be by them sold ; but is given to his residuary devisee, his nephew, with a power to his executors to sell such parts as they might think proper and necessary, for the payment of debts and legacies. The executors jmssess only a naked power to sell, until the exercise of which the estate passes in fee simple to the devisee, who, only under the will, is authorized to receive the rents and profits thereof. ” And in this decision the Court merely followed ³⁹⁵ the