Cohea v. Johnson

delivered the opinion of the court.

The deed from Jelks, administrator, was properly admitted in evidence. That Jelks was the administrator with the will annexed of the Cohea estate appears everywhere in 'the record; that the land in controversy was conveyed by Jelks, administrator, in the particular deed whose introduction m evidence was objected to, as the land of the Cohea estate, appears on the face of the conveyance itself; and that Jelks, administrator, in this conveyance was dealing with the land as administrator of Cohea’s estate appears too clear to need discussion.

The contention of appellants’ counsel that the question of the power of Jelks, administrator de bonis non with the will annexed, to execute the provision of the will of Perry Cohea, deceased, in the sale of the land in suit, is res adjudicata, under the decree of the chancery court of Hinds county, in the case of Jelks et al. v. Boatner et al., is without merit. That was a decree in a proceeding instituted by some of the heirs of Coheá against other heirs of the same person, and not by Jelks, administrator, at all, as an inspection of the bill in that case plainly shows. The question of the power of Jelks, administrator, is not hinted at in any pleadings or proceedings, nor does the decree undertake to settle this question, which was not then before that court. It is true the decree of the chancery court declares that the sales of the *52lands “ should be so made by a commissioner of the court as an impartial and disinterested person, rather than by W. 13. Jelks, the administrator and one of the heirs; ” but even this declaration is uncalled for, since no judgment of the court touching Jelks’ impartiality and disinterestedness was anywhere sought by any one. But this unauthorized remark of the court does not touch the question of Jelks’ power to sell the lands, under the will of Cohea, as administrator de bonis non with the will annexed.

The contention of counsel must have arisen from a misconception of the purpose of the bill in the case of Jelks et al. v. Boatner et al., and a misapprehension as to the parties, and the character of the parties, to that litigation. The question before us now, as to the power of Jelks, administrator, to sell the lands of the Cohea estate, under the provisions of the will of Perry Cohea, deceased, and the question as to the desirability of the sale of the lands of that estate in a particular manner for the purpose of distribution among Cohea’s heirs, and of the power of the court to decree such sale, are w.ide asunder as the poles.

These two preliminary contentions disposed of, we come' now to consider the power of Jelks, administrator de bonis non with the will annexed, to make sale of the lands m controversy.

The testator, among other provisions and directions to be found in his will, directs the executors thereinafter named to pay all his debts, including physician’s bill and funeral expenses ; the payment to Edward Cohea, a minor son of the testator, by the executors, of the sum of $250 immediately, as an outfit for his departure to, and entrance into, Hanover College, and the maintenance and education of said Edward at said college until he should attain his majority; the payment of a bequest of $600, by the executors, to Julia Knee-land, a niece of testator, as soon as that sum can be spared from the pressing wants of the testator’s estate; all the personal property of the testator, other than slaves, is directed *53to be sold by tbe executors on. such terms as they shall deem most beneficial for Cohea’s heirs; two eighths of land in Copiah county are to be sold and disposed of by the executors upon such terms as they shall deem best for the estate; a certain lot or tract of land, theretofore by verbal agreement contracted to be sold to Caswell Clifton, the executors are directed to convey to said Clifton, in pursuance of that verbal agreement. The fourteenth paragraph of the will then continues : “ It is my will that all my remaining lands in TIinds county shall be sold by my executors upon such terms and upon such credit as, in their discretion, shall seem most advisable for the interests of all concerned in my estate. It is my will, and my said executors are directed to lay off said remaining lands into lots of ten, twenty, or thirty acres each, and sell the same upon the most advantageous terms, securing payment thereon in a safe and satisfactory manner.” Then the fifteenth paragraph of the will directs the executors, in their discretion, to delay the sale of the lands mentioned in paragraph fourteen until they could make a crop thereon. The payment of an annuity to Maria Frances, a minor child of the testator, is next directed and provided for. The seventeenth paragraph then declares : “After all my just debts and legacies are paid, and charges on my estate provided for, it is my will and desire that all moneys remaining in the hands of my executors, from whatever source arising, shall be equally divided among my said children,” etc. And the eighteenth paragraph is in these words : “ I do appoint and nominate as the executors of my last will and testament, my son-in-law, J. Stone, my son, David A. Cohea, and my friend, Samuel Matthews, hereby granting to them, or any two of them, full power and a”+hority to execute and carry into effect each and all provisions of this, my last will and testament, according to the t utent and meaning thereof.”

It is clear that this will do not confer upon the executors the power to sell the lauds if they shall so elect. The terms of sale are confided to the discretion of his executors, but the *54sales of the lands themselves are to be made at all events; and these sales are to be delayed only for one season — in order that a crop may be made, if the executors deem that course to be beneficial to the estate. The lands are devoted to sale absolutely, but the sales are to be made on terms within the discretion of the executors, and the sales may be delayed for a length of. time sufficient to make a crop on the lands, if, in the discretion of the executors, that course seems desirable. Nothing is inferable from the will, and all the parts of it, which suggests any other means of meeting the legacies, annuities, and charges made upon the estate than those arising from the sales of lauds; and the sum remaining in the hands of the executors, whether from land sales or otherwise, after payment of debts, legacies, annuities and charges — the residuum of the entire estate now converted into money — is to be equally divided between his heirs named. Unless the lands are sold, the entire intent of the testator will fail.

Not only the clear intent (to be gathered from every part of the will) of the testator was that the lands were to be sold by the executors, but the fourteenth paragraph of the will expressly directs the sale of the lands, and only the questions of terms and credits in the making of the sales are left to the discretion of the executors. The lands are to be sold at all events, and the power to make sale is confided to the executors, virtute officii, and not in any other character. There is no personal trust confided to the executors nominatim, but merely that official one usual in the appointment of executors generally, and belonging to the office.

From this construction of the will, it follows that the power of sale in the premises survived to Jelks, administrator de bonis non with the will annexed, under the law as it has long existed in this state — the statutes in the codes of 1880, 1871, 1857, and Hutchinson, being substantially the same. See Hutch. Code, §113, chap. 49; Code 1880, §1984.

The fact that the testator, in the eighteenth paragraph of the will, grants to his executors or any two of them power and au*55thority to execute all the provisions of the instrument accord-, ing to the true intent thereof, does not at all militate against the correctness of the opinion just pronounced. The power of the administrator, with the will annexed, is to be determined by the law applicable to the particular class of cases to which it may be found to belong. We have'already said that in those cases in which certain powers are conferred upon executors, which are.to be executed virtute officii, the power survives to the administrator with the will annexed, while 'in those cases where a relation of purely personal trust is created in executors nominatim, the trust cannot be executed by the administrator cum testamento annexo. The fact that the testator grants authority to the executors or any two of them to execute all the provisions of his will, is not potential at all in considering the question of the power of the administrator with the will annexed to execute the provisions of the will in those cases where the executors are empowered to act by virtue of their official character. The administrator with the will annexed, by virtue of his office, succeeds the former executors in the execution of the power conferred on them officially. He succeeds to the office, and succeeds to the powers of all the former incumbents of it.

These views fully meet the necessities of the case before us, and settle finally the rights of the parties. As we understand the record, from page 72 to 77, inclusive, these views also finally determine the litigation in thirty-eight or thirty-nine other suits now pending in the court below, and in whichthe same questions are involved.

We regret our inability to meet the expressed wishes of counsel on both sides, and consider and settle every question presented, in-order to put an end to all litigation growing out of this same fruitful source. The facts in the two or three eases yet remaining open after this opinion are not before us, and we cannot undertake to deal with these cases in any manner.

Affirmed.