Brown v. Beard, 6 N.C. 125, 2 Mur. 125 (1812)

Jan. 1812 · Supreme Court of North Carolina

6 N.C. 125, 2 Mur. 125

Peter Brown v. Samuel Beard.

From Rowan.

A, being- seised of a house and lotira town, and also of two tracts of land, devised, that his executors \ should sell one of the tracts of land and his house and lot in town, for the purpose of paying his debts; that his widow should have the other tract during her life, and at her death, that should he sold, and the money arising- therefrom be equally divided among his children then Jiving. The executors sold one of 'the tracts, but not the house and lot; and one of them dying, the survivor sold part of the other tract. Held, that this last sale was void, because the executors had by the first sale executed the power devolved on them by the will. One tract being sold to pay debts, the other was to be reseryed for the children.

This was au action of trespass quare clausum fregit, to which the Defendant pleaded 46 the general issue/’ and 44 liberum tenementum.” - Michael Moor being seized of the lands .in question, made his will duly executed to pass his real estates, wherein he devised as' follows,' to-.wit: 44 I devise that my executors may (so soon as they can conveniently, and to advantage,) sell my dwelling-house in town, together with the 170 acres of deeded land adjoining Barbara's land, out of which they must pay off the remainder of my debts, should any remain : and any balance that should remain, after paying my debts, I desire the same may 'be disposed of in the best manner, at the discretion of my executors, for the advantage of my children. Item — Should it not be in the power of my executors to sell the house and land before mentioned, then my desire is, that they soil the tract of land I bought from Frederick Getzcha, to be employed in manner before mentioned j but I should rather wish the first to be sold. Item — Whichever of the premises . remains unsold, my will is, that my wife shall have the same during her widowhood. At her marriage or death, I devise the same to be sold to the best advantage, and the money arising from the. sale thereof to he equally divided among all my children that shall then be alive.w The testator appointed Susannah Moor and Gasper joinder executrix and executor of his will, who qualified and undertook its execution. Some time after the death of the testator,' the executors sold the tract of land which the testator purchased from Frederick Getzcha; and many years afterwards, Susannah Moor, then the surviving executrix, sold to Peter Brown the Plaintiff, the land in controversy in this case, to wit, twenty-two aereé of the Barbarie tract, and executed to him a deed. Brown entered and took possession of the land. Some time afterwards, Susannah Moor the widow died, and the children of Michael Moor, claiming the land after her death* sold and conveyed the same to Maxwell Chambers, under whom the Defendant entered and cut down the trees complained of by the Plaintiff in his declaration. It was submitted to the Court to decide, Whether the dped made by Susannah Moor to the Plaintiff passed an estate in fee or for life only : if in fee, judgment to be entered for the Plaintiff; if for life only, judgment to he entered for the Defendant.

TaxloR, Chief-Justice,

delivered the opinion of the Cburt:

The widow could convey only a life estate in the land she sold to Brown, because she and the other executor had previously executed. The power devolved on them by the will, of selling one tract. It is true they did not sell the house and land which the testator desired to be sold in the first instance ; but the direction to that effect is not peremptory, and if they found that inconvenient lo be done, they were at liberty to sell tbe land bought of Getzcha. But one tract being sold, and it is immaterial which, tiie other ought to have been reserved for the uses of the will. The widow had but a life estate in it, and on her death it should haVe been sold to the best advantage for tbe use of the children. Judgment for the Defendant.