34 Ala. 591 | Ala. | 1859
The executors of Peter Walker, deceased, sold the land in controversy without the authority of any court, at private sale. The sale was necessarily void, unless the will of their testator bestowed upon the executors the power to sell. The two clauses of the will bearing on the question of the-power of, sale are as follows: It is my will, after paying my funeral expenses and my just debts, that my estate be kept together, for
Now, it is manifest that there is here, not only no grant of a power to sell the entire estate, but a virtual denial of such power. The testator directs that his estate be kept together, tor the support, maintenance and education of his children, and that no charge'be made against any of them for necessary support and education. The testator’s design to keep the estate together, as the means of maintaining and educating the children, and not to have it sold, is clearly manifested in this item of the will. The next item rather confirms than conflicts with that idea. It requires that one-sixth part of the estate should be converted into slaves, upon the marriage or attainment of majority by any one of the testator’s daughters; and on the attainment of majority by the sons, that their respective portions should be paid in cash. The intention of this item of the will is too clear to be mistaken. Following up the design evidenced by the preceding clause, he intended that the estate should be kept together, until the contingencies should arise in which his several daughters and sons should be entitled to their several and.respective portions of one-sixth; and that in each one of those several contingencies, one-sixth part of the estate should be set apart from the rest, and converted either into slaves or money, according as the daughters or sons were to receive portions. There could be from this clause no implied power to sell any other than one-sixth part of the estate as the contingencies arose; and that would be a sixth part previously separated and distinguished for that purpose. t If two of the children were at the same time in a condition to demand the payment of they.’, shares,
The authorities cited and referred to by the counsel for the appellee do not justify any implication of authority to sell the entire estate upon the occurrence of any one or two of the contingencies. It is clear that such a sale would defeat the testator’s manifest intent and purpose. This will be plain, if the inquiry be made, how could the estate be kept together, for the support, maintenance and education of the children, if upon the first marriage or attainment of majority the entire estate should be sold. It may have been more convenient and expedient to sell the entire estate, than to have sold a sufficiency to pay the several portions of the children, as they became respectively entitled to tfiem. That might have been a ground for an application to the chancery court, not for a private sale by the executors. It would be ^violation of the intention of the testator for the executor to make any sale except of a portion set apart and distinguished to meet the claims of the children, as the contingencies upon which their right to the possession of their shares accrued.
The decision in Winston v. James & Haigh, 6 Ala. 550, asserts the doctrine, that “ no precise forms of words is necessary to the creation of a power (of sale). If the intention to confer the power is apparent, to enable the executor to execute the trusts of the will, the power will be implied.” Neither that case, which is upon a will of widely different language, nor the principle above extracted, can avail the appellee; for the exercise of the power of sale here would defeat, instead of enabling the executor to execute the trusts of the will.
The judgment of the court below is reversed, and the cause remanded.