16 S.E. 321 | N.C. | 1892
This action was brought by plaintiffs as heirs at law and devisees of Peter Epley for a partition of the lands known as the Catharine Epley tract.
That Peter Epley, Willis Epley, James Epley and Fannie Morrison (wife of John Morrison), the plaintiffs above-named, and John Epley, Jacob Epley and Mary Parker are tenants in common in fee of the tract of land hereinafter described, each owning an undivided one-seventh interest therein in fee.
The defendants' executors answer, and allege:
1. That the clerk has no jurisdiction in this action, for the reason that the same involves a construction of the will of their testator, Peter Epley.
2. That the will of their said testator (see record, pp. 23 to (506) 29, inclusive) authorized and empowers them to make sale of said lands, which they are proceeding to do under said will, and the plaintiffs are therefore not entitled to partition in this proceeding.
His Honor being of opinion that the clerk had jurisdiction, and that the will of Peter Epley did not authorize a sale of said land by said executors, gave judgment accordingly, to which judgment and rulings defendant excepted, and appealed to the Supreme Court.
8. That the petition is insufficient and fails to show any right to partition by plaintiff, in that it does not allege that any or either of them are in the possession of the land which they seek to divide.
We think it very clear that the will did not authorize a sale of the land by the executors. The land devised is not to be sold to pay debts, legacies, costs or charges of administration, nor is it to be sold with personal property, nor are the proceeds of sale mixed with the personal estate. It was devised to Catharine for her life, and upon her death it was to be sold and the proceeds equally divided among the children then living. There is no express authority given the executors, and none can be implied from the provisions of the will. Bentham v. Weltshire,
Besides, it is not like the case of Alsbrook v. Reid,
AFFIRMED.
Cited: Alexander v. Gibbons,