Ogden v. Smith
2 Paige Ch. 195
New York Court of Chancery
1830
Check Treatment
The Chancellor.

The true construction of this will and codicil, taken together, appears to be this: By the original will the te.stator intended that three executors should actually accept the trust; and if any of those named by him declined, provision was made to supply the vacancies.' In the codicil two others are added, without any new direction as to supplying vacancies if any of them should renounce the execution of the .will. The original intention of the testator will therefore be carried into effect by permitting any num*198ber of the executors, not less than three, to qualify and execute the trust. If three or more of them had renounced, the number must* have been increased, so as to complete that number-in the manner specified in the original will. But as' four have qualified, there is no necessity of supplying the place of the fifth, who has renounced the trust. The" learned commentator on American law, in the last volume of his valu able treatise which has just been- published, supposes that the provision authorizing the executors who prove the will to convey without the others has been repealed in the recent revision. (4 Kent’s Commentaries, ,320.) And he very .properly declares such an alteration of the law to be injudicious. His opinion is founded upon the construction of the 106th and 112th sections of that title of the revised statutes which treats of the nature and qualities of estates in real property, and the alienation thereof. (1 R. S. 735.) But he has evidently over-, looked the fifty-fifth section of the subsequent title, relating to the powers and duties of executors, &c. in which the provision of the statute of 21 Hen. 8, ch. 4, is re-enacted, almost in the same words as in the former statutes of’this state. (2 R. S. 109, § 55.) The 15th and 16th- sections of the title, relative to the granting of-letters testamentary and of administration, (2 R. S. 71,) declare the executors" who do not prove the will, and who are not named as such in the letters testamentary or of administration, to be superseded thereby, until they shall appear and qualify; and they are prohibited from disposing of any part of the estate. These provisions limit and control the 112th section of the article relative to powers contained in a preceding part of .the revision. The power in- that case is only vested in the executors who prove the will," and they must all join in the execution of the power. In this case the power to execute conveyances, given by, the will to the executors, was duly executed by those to whom letters testamentary -were granted since the revised statutes went into operation. Their deed conveyed a good and valid title to the purchaser, and he is bound to accept the same and to pay the balance due agreeably- to. ¡£he contract . ■