THE

AMERICAN LAW REGISTER.

NOVEMBER 1885.

THE POWER OF AN ADMINISTRATOR WITH THE WILL ANNEXED OVER HIS TESTATOR'S REAL ESTATE.

IN many of the states of the Union, there are statutes granting powers to and imposing duties upon administrators cum testamento annexo, with regard to the care and disposition of the real estate of the testator. While this power and authority is purely statutory in its character, still there are certain general features that prevail in most all of these statutes, so that it is a subject that is of more than local importance. There is no collection or statement of the decisions of the different courts construing and applying these statutes, so far as this writer knows. It is the purpose of this article to present a few points on this matter.

§ 1. Authority of Executors and Administrators at Common Law over Decedent's Realty.-At common law an administrator took no interest in the real estate of the decedent, nor did an executor, unless by force of the provisions of his testator's will. An administrator is merely the agent or trustee of the estate of the decedent, acting immediately under the direction of the law prescribing his duties, regulating his conduct, and limiting his power: Collamore v. Wilder, 19 Kans. 67, 78; s. c. 17 Am. L. R. (N. S.) 135. He has no authority over the realty of the intestate except to sell in pursuance of an order of sale properly issued by a court of competent

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jurisdiction. Having no general authority, he must strictly com ply with the law: Broadwater v. Richards, 4 Mont. 80, 84.

An executor and administrator at common law, after the granting of letters of administration, had essentially the same powers: Wms. on Exr's 610. But these powers pertaining to the respective offices, only extended to the personal estate. So, it has been held, that an administrator as such cannot maintain a bill in equity to remove a cloud from the title to realty: Smith v. McConnell, 17 Ill. 135. Nor is he authorized, in the ordinary course of administration, to lease the real estate of his intestate: Terry v. Fergu son, 8 Port. 500. Neither can an executor, as such, sell the lands of his testator, unless directed to do so by his will: Lippincott's Ex'r v. Lippincott's Ex'r, 4 C. E. Green 121; s. c. 8 Am. L. Reg. (N. S.) 127. Nor can executors make a dedication of their testator's realty, for the purposes of a street, in the absence of authority conferred by the will, or an order and decree authorizing such disposition of the testator's realty given by a court of competent jurisdiction: Kaim v. Harty, 73 Mo. 316. So where an executrix brought an action for an alleged trespass upon her testator's land, the same was dismissed, the court saying "the real estate of a deceased person descends, upon his death, to his heirs or passes to the devisees under his will." By the common law, the personal representative, whether executor or administrator, takes no interest in it: Aubuchon v. Lory, 23 Mo. 99. And to the same point, generally, see Leavens v. Butler, 8 Port. 389; Chighizola v. Le Baron's Ex'r, 21 Ala. 410; 1 Williams on Ex'rs 650, n. (D 1), and 1 Perry on Trusts, 3d ed. § 262.

§ 2. Authority of Administrators, c. t. a., at Common Law, over Decedent's Realty.-An administrator c. t. a. is a person appointed by the court to administer the testator's estate, in cases where he has appointed no executor, or where the appointment fails: Williams on Ex'rs 461. While it is true, generally, that an administrator c. t. a. succeeded to all the powers and rights, and was charged with all the duties which by the testator's will were imposed upon an executor, still, as already shown, an executor, virtute officii, took no interest in, or power or authority over his testator's realty, unless he was vested with it by the language of the will. Therefore, at common law, the administrator c. t. a. only succeeded to that power and authority, and was only charged with those duties which pertained to the office of an executor, as such, and affected only

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the control and disposition of the personal estate of the testator. So, where testator directed his lands to be sold by his executors, this was a personal trust; and as the executors renounced, there was no one by whom the duty could be fulfilled. A sale by administrators c. t. a. was altogether unauthorized and void: McDonald v. King, Coxe 432. So, in Pennsylvania prior to the act of March 12th 1800, it was held that, "where there is a naked power to sell and they renounce, administrators c. t. a. have not, either at common law or by statute, authority to sell, although the object of the sale be the payment of debts:" Moody v. Vandyke, 4 Binn. 31; Moody's Lessee v. Fulmer, 3 Grant 17. So, in an action of ejectment, wherein the plaintiff claimed title through a deed from an administrator c. t. a., it not appearing to the court whether the devise of the testator to his executor was a mere naked power or one coupled with an interest, it was held that the plaintiff could not recover, the court saying, "the powers of an administrator with the will annexed are the same as those which pertain to an executor as such;" and that, "an executor virtute officii at common law had no right to take possession of the lands of his testator. If they are devised they pass to the devisee, who may enter upon and take possession; if undevised they descend to the heirs, who are entitled to the possession:" Lucas v. Doe ex d. Price, 4 Ala. 679, 682. Nor can an administrator c. t. a. recover the possession of premises from a tenant thereof, who is holding over after the expiration of his term: Floyd, Admr. v. Herring, 64 N. C. 409. And where a bill in equity was filed to remove a cloud from title to realty caused by the deed of an administrator c. t. a., the court dismissed the bill, holding, that the complainants had an adequate remedy at law, since the deed was void on its face: Posey v. Conaway, 10 Ala. 811. The Supreme Court of the United States, in commenting on the powers of an administrator de bonis non with the will annexed, who had been appointed under the Statutes of Maryland, the statutes being silent as to his powers, said: "By the common law his duties are confined to the personal estate unadministered by his predecessor. Whatever authority he may possess as to the real estate must be derived from the will. If not found there in express terms, or by necessary implication, it has no existence; hence the test in all such cases is the intention of the testator. Many of the duties enjoined upon the executors (by the will in question) were foreign to those which come within the scope of

their ordinary functions. Such powers never pass by devolution to an administrator, unless it be clear that it was the intention of the testator that he should become the donee of the power, in place of the executor appointed by the will. If no provision is made by the will for such substitution, the power does not become extinguished, but the case falls within the category of those where a court of equity will not permit a trust to fail for want of a trustee, but will appoint one and clothe him with the authority adequate to the duties to be discharged:" Ingle v. Jones, 9 Wall. 486, 498; See also, 2 Perry on Trusts, § 500, n. 1, and 1 Williams on Ex'rs 654, n. (W1); Brush v. Young, 4 Dutch. 237; Atty.-Gen. v. Garrison, 101 Mass. 223; Lockwood v. Stradley, 1 Del. Ch. 298; Besley's Estate, 18 Wis. 451; Abell v. Howe, 43 Vt. 403.

§ 3. Survivorship of Executorial Authority at Common Law— Statute of 21 Henry 8, c. 4.—At common law when executors were vested with the authority to dispose of their testator's real estate, the death, failure, inability or refusal of one or more, less than the whole of their number, to act, wholly defeated the valid execution of the authority. To avoid the great embarrassment caused by this rule, the statute of 21 Henry 8, c. 4, was passed. This act in substance provided, that where lands were devised to be sold by executors, that those, although less than the whole number named in the will, who took upon themselves the administration of the will, should be competent to make as valid bargains and sales of the real estate devised to be sold as if all the executors named had joined. For the full text of this statute, see Important English Statutes 19. This statute, or some modified form of it, has been adopted in most of the states of this country.

The rules of law laid down as to the execution of this authority of the executors are somewhat complex, and are hardly capable of formulation into inflexible rules. This arises from the application of the rule which, in each particular case, gives effect to the lawful intent of the testator as shown by the construction and interpretation of his will. The executor's authority over the testator's real estate is divided into two classes, viz. : 1. A naked power; and, 2. A power coupled with an interest or a trust: Powell on Devises 292. Mr. Powell seems to make two exceptions under the head of naked powers on the question of the survival of the power: they are: 1st, where the authority is given by the testator, to his executors,

as executors; and 2d, where authority is given by the testator, but there is no appointment by express words what person shall sell the land; for which reason the law implies that they shall do it, who have power to pay the debts or distribute the money, viz.: the executors. In such case the executors take in their official capacity, and as the office never dies the authority survives: Powell on Devises 294, 298-9. At common law a purely naked power did not survive. So it is said of the act of 21 Henry 8, c. 4, the question has been, whether this statute extended to executors where a power to sell was given to them nominatim; and all the authorities agree, that if a power is given, indicating personal confidence, it must be confined to the individuals to whom it is given, and will not, except by express words, pass to others than the trustees originally named, though they may by legal transmission, sustain the same character. So it was decided in Cole v. Wade, 16 Ves 27, and in many other cases; Tainter v. Clark, 13 Met. 220, 226. Powell on Devises 294; 1 Sugd. on Powers *146-7.

A naked power is discretionary with the donee, and no court can compel or control the execution thereof, although he leave it unexecuted; but the rule is different in the case of a power coupled with an interest or a trust. In such case a court of equity will not allow it to fail for want of a trustee : Perry on Trusts, § 248. It is apprehended that this doctrine of the court of equity just stated was the foundation of the passage of the statute of 21 Henry 8, c. 4; Brown v. Armistead, 6 Rand. 594, 598; Mosby's Adm'r v. Mosby's Adm'r, 9 Gratt. 584.

§ 4. Reason for, and construction of Statutes which vest Executorial Authority over Decedent's Realty, in Administrators c. t. a.The rule that a trust shall not fail for want of a trustee, which is thought to be the foundation of the statute of 21 Henry 8, c. 4, is also the foundation of the statutes of the several states of the Union, which provide for the exercise of the same power as the executors, over their testator's real estate, by the administrators with the will annexed: Brown v. Armistead, 6 Rand. 594, 598; Mosby's Adm'r v. Mosby's Adm'r. 9 Gratt. 584, 598; Evans v. Blackiston, 66 Mo. 437, 439. It was said by Lord COKE, of the statute of 21 Henry 8, c. 4, “ Albeit, the letter of the law extendeth only to where executors have a power to sell, yet being a beneficial law it is, by construction, extended to where lands are devised to executors to be sold:" cited in Corlies v. Little, 14 N. J. L. 373, 383-4.

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