McCollum v. McCollum's

33 Ala. 711 | Ala. | 1859

R. W. WALKER, J.—

Under the authority of the decision in the case of Walker v. Hunter, at the present term, we must consider the appeal bond found in this record as a sufficient security for the costs; and the motion to dismiss the appeal is therefore overruled.

[2.] The act of February 16, 1854, (Session Acts ’53 and ’54, p. 45,) invests the probate court with authority to order the sale of the personal estate of a decedent, to make distribution among the legatees or distributees, “ unless power is conferred by the will to sell such property for that purpose.” The jurisdiction of the court is thus made to depend on the fact, that under the will the executor has no power to sell such property for the purpose of division among the legatees.

[3.] ■ In the present ease, the testator directs all his property, lands, negroes, &c., to be valued by three disinterested men, and divided, or sold, and the money distributed among the legatees. A power to sell the slaves, and distribute the proceeds, is here conferred; and although the executor is not expressly designated as the donee of the power, it devolves upon him by necessary implication. For, wherever such a power is given by will, the law casts it upon the person who is appointed by the testator to. execute the will, unless it is specially delegated to another.—4 Kent, 327; 1 Sugden on Powers, 167, 172. It follows that the court had no j urisdiction to make the order in this ease.

The decree is reversed, and the cause remanded, with directions to the probate court to dismiss the proceeding.