Bromley v. Miller

The legal effect of the statute of 1864 (Laws 1864, chap. 311 (as amended), Laws 1872, chap. 680) is to make an exemplified copy of a will made in another State or Territory of the United States, and the proofs thereof, when recorded, equivalent to proof of the will in this State. The statute is not express on this point, but such, we think, is the inference from the language employed; and it has been so regarded by the profession. Numerous titles rest upon this interpretation. We are not, therefore, disposed to indulge any verbal criticism, the effect of which would be to cast doubt upon the meaning attributed to the statute.

*577Treating the will as having been duly proved here, there can be no question that the title offered the defendant is good. The executors had power to sell and convey. The conveyance by them, to Bromley, in execution of the power, vested the title in the latter, and a conveyance by Bromley to Miller will vest the title in Miller. The question, whether the executor of a foreign will can convey lands in this State, is not presented. Neither a foreign or domestic executor, as such, has power to convey lands. The conveyance, by the executors in this case, is operative only by virtue of the power of sale contained in the will. They act in conveying the land as devisees of a power created by the owner of the estate, and not under any authority derived from the probate court.

Judgment is, therefore, rendered against Miller, requiring him to complete his purchase, without costs.

Judgment accordingly.