79 N.J. Eq. 117 | New York Court of Chancery | 1911
The bill is filed for the purpose, ostensibly, of procuring the construction of a will. I am unable to find any provision of the will which needs construction. The power of sale given by the will to the executors, to which the bill especially refers, is sus
Section 24 of the Orphans Court act (P. L. 1898 p. 722) expressly authorizes an executor of the domicile of a non-resident to make sale of land in this state pursuant to a power contained in the will of testator for that purpose, providing the will has been executed in accordance with the laws of this state and an exemplified copy of the will and foreign letters have been duly filed and recorded in this state. Hnder the facts stated in the bill, and admitted in the answer, a power of sale clearly resides in the surviving Pennsylvania executors.
At common law a testamentary power of sale of an executor was treated as a personal trust; with the death, resignation or removal of the executor the power died; an administrator cum testamento annexo could not, in consequence, exercise the power. Den, ex dem. M'Donald, v. King, 1 N. J. Law (Coxe) 432. This has been changed by our statute; the power now passes to an administrator cum testamento annexo, except in certain cases specifically referred to in the statute. 2 Gen. Stat. p. 1429 § 21. But this statute clearly has reference to the survival of the power of sale where the executorship has become vacant and an administrator cum testamento annexo has been appointed as the successor in office of the person or persons named in the will; it
I am convinced that under the facts stated in the bill the local administrator cannot exercise the power of sale contained in the will.