#### DEN ex dem. SAMUEL W. FEREBEE v. SAMUEL PROCTER.

In a will, the words, “ I leave all my land not given away, to be sold, and after my debts are paid, the residue of my estate to be divided between my wile, son and daughter;” together with the following in a codicil, “ I •nominate M. S. my executor to this my last will, to make sale of my land before mentioned, and to execute this instrument of writing in every respect,” do not vest an estate in the executor, but only confer on him a power of sale. Neither are they a devise of the land to the wife and children.

Land directed by a testator to be sold, but not devised for that purpose, until a sale, descends to the heir. And, if converted out and out, the rule at law is the same; the doctrine of conversion being confined to the Court of Equity.

An administrator with the will annexed, cannot, by virtue of his appointment, execute a power of sale given to the executor.

Neither will a decree of a Court of Equity directing him to sell and convey, enable him to vest a legal estate in his vendee. That Court has jurisdiction only to direct those having the legal estate, to join in a sale for the purpose of executing the trusts of the will, but has none to declare the legal title to be in any person, excepting the one in whom at law it vests.

Thomas Pool Williams, being seised of the premises in the declaration mentioned, made his will on the 24th of October, 1799, and therein devised two tracts of lands particularly described, to his son Samuel. The will then contains these clauses:

“ It is my will and desire, that my executor hereinafter mentioned, pay all my just debts. Thirdly, I leave all my negroes to be equally divided between my wife, Elizabeth, my daughter, Peggy, and my son, Samuel. Fourthly, I .leave all my lands not given away, to be sold at six and twelve months credit; and after my debts are paid, the .residue of my estate to be divided between my wife, daughter, and son before mentioned.”

■ In this instrument no executor was named; but on the •same day, the testator added on the same sheet of paper: •íe I nominate Malichi Sawyer my executor to this my last will, to make sale of my lands before mentioned, and to execute this instrument of writing in every respectand 'executed the same as an addition to his will.

*440The testator died in January, 1800 ; and this will was thereupon proved. Malichi Sawyer refused to intermeddle with the estate, and renounced the office of executor; and administration with the will annexed, was then duly committed to Thomas C. Ferebee.

The testator left but two children, Peggy and Samuel, who were his heirs at law, and both infants; and Peggy had then intermarried with the said Ferebee.

In April, 1804, Thomas C. Ferebee filed his bill in the Court of Equity for the District of Edenton, against the said Samuel and Elizabeth, the son and widow of the testator, in which he stated the foregoing facts, and charged that the testator had died largely indebted, so that it had become necessary, for the satisfaction of his creditors, either to sell the slaves left to his family, or the lands mentioned in the residuary clause of the will; and that it was most beneficial to the family, as well as consonant with the intention of the testator, that the debts should be paid out of the proceeds of those lands; and that a sale could not be made by the parties without the aid of that Court, by reason of the infancy of his wife, the said Peggy, and of her said brother. The bill then prayed process against Elizabeth and Samuel, and a decree for the sale of the lands. An answer was put in by the widow, and for the infant Samuel by his guardian appointed by the Court; in which the allegations of the bill are admitted, and the defendants join in the prayer of the sale. Upon those pleadings, the Court, on the 19th of April, 1804 decreed, “ that the complainant do sell to the highest bidder at public auction, &c., the lands, &c.,” (including the premises in dispute in this action;) “ and that the proceeds of such sales be assets in the hands of the said Thomas C. Ferebee to satisfy the creditors of the testator, Thomas P. Williams.”

Soon afterwards, Thomas C. Ferebee sold the premises now sued for, upon the terms prescribed in the decree, and made a deed therefor; under which the defendant was in possession at the date of the declaration.

After the sale and conveyance, the widow, Elizabeth, died intestate in 1808, leaving the said Peggy and Samuel, *441her only children and heirs-at-law; and then the said Peggy died, also in 1806, leaving her said husband surviving, and also the lessor of the plaintiff, their only child, and her heir-at-law. Thomas C. Ferebee died in the beginning of the year 1836; and this action was-brought in November following.

Upon these facts stated as a case agreed, the cause was submitted to his Honor Judge Toomer at Camden on the last Circuit, who gave his judgment as follows: — “ On a recurrence to the will, it appears, that the testator did not intend to die intestate as to any portion of his estate, and the will seems to be sufficient to prevent intestacy as to any part of it. The testator left the land, described in the declaration, to be sold; — ordered his executor to make the sale, and, after payment of his debts, directed the residue of his estate, including the proceeds of the sale, to be divided between his wife, daughter and son. Hence it appears, the mother of the lessor of the plaintiff could not claim the premises described in the declaration, as heir-at-law of the testator. The claim must be under the will.

“ But it may be concluded, that one undivided third part of the premises was devised to the mother of the lessor, and has descended on him, as heir-at-law. To the Court it seemeth, that the land described in the declaration, was converted into personalty by the will of the testator. He ordered the sale, and intended that the proceeds should have the quality of personal estate; first, for the purpose of paying his debts, and then, for division between his three legatees. Such intent is indicated by the circumstance, that the proceeds of the sale were to form a part of the residue of his estate, which, after payment of his debts, was to be distributed, according to the rules governing the succession to personal property in cases of intestacy. The sale was ordered by • the testator to be absolutely made; no discretion was to be exercised by the executor on the subject. If the portion of the proceeds of the sale, to which the mother of the lessor was entitled, be considered as personal estate, that portion was received by her husband during the coverture, and thus became his property. If the will of the testator converted the premises, *442described in the declaration, into personal estate, and the lessor have any claim thereto, it cannot be asserted in this-action’

“ The premises described in the declaration, were not devised to the executor; a mere power of sale was given to him by the will. If the premises be considered, notwithstanding the will, as real estate, the power to sell could not be executed by the administrator with the will annexed,either at common law or under the statute of 21st Henry 8th. But, if the will converted the premises out and out into personalty, could not the administrator, with the will annexed, make the sale virtute officii, without the aid of any decree 1

“ When the executor renounced the execution of the will, and refused the acceptance of the trust, the Court of Equity could appoint a trustee to prevent a failure of the trust created by the will, and thus execute the intent of the testator.

“ Upon the refusal of the executor to accept the trust, it was not necessary to make him a party to the bill when the sale was ordered by the Court of Equity. And if the construction given to the will be correct, the decree was not void, because the mother of the lessor was not directly a party to the bill, as her husband was the administrator with the will annexed, filed the bill, prayed the sale, obtained the decree, and made the sale pursuant to that decree. The decree was made by a Court of competent jurisdiction, and the sale was made pursuant thereto. Under the circumstances of the case, I cannot think the decree and sale void as to the interest of the mother of the lessor, because she was not directly a party to the proceeding.

“ The testator died in 1800; the mother of the lessor, in 1806; the sale was made in 1804; this action was brought in 1836, and the defendant is stated to be in possession of the premises, claiming the whole under the sale made as aforesaid. The deed made by the husband, pursuant to the sale, and under the decree of the Court, was at least colour of title. If the defendant had actual adverse possession for several years after the lessor attained full age, and his mother had not been actually *443seised of the premises so as to entitle the husband to be tenant by the courtesy, then the title of the defendant •would be good, and the claim of the lessor barred. But the fact of actual adverse possession for seven years by the defendant, is not distinctly set forth in the case, nor is the actual seisin of the mother, so as to make the husband tenant by the courtesy.”

His Honor being thus of opinion that the lessor of the plaintiff had no title, ordered a nonsuit; and he appealed.

Devereux, for the lessor of the plaintiff.

Kinney, for the defendant.

Ruffin, Chief Justice,

after stating the facts as above, proceeded as follows: — The premises descended to the testator’s two children, unless they are devised in the will to Sawyer, the executor, or to the wife and children. We think with his Honor, that no estate is given to the executor, but only a power to sell, coupled with a trust for the payment of the debts and legacies. The words are, “ I leave my lands, not given away, to be sold.” It is not said to whom they are left; nor in that part of the will, by whom they are to be sold. Lord Coke says, that “ when a man deviseth his tenements to be sold by his executors, it is all one as if he had devised them to his executors to be sold; and the reason is, because he deviseth the tenements, whereby he breaks the descent.” Co. Litt. 236. This, however, has been questioned by high authority. In Lord Nottingham’s note on this passage, its correctness is denied, and it is said that no interest passes to the executor. Sir Edward Sugden, thinks that a devise of land to be sold by executors, without other words giving them the estate, invests them only with a power, not an interest. Sug. Pow. 102 — 108. It is not necessary, in this case, that the Court should adopt the one or the other of those opposite opinions. The existence of such a difference of opinion, renders the text at least doubtful. If it be correct, it must be so upon the ground of favour-ing the intention, where there were several executors, by preserving for the largest period, the authority in some person to sell; which induced the Courts to lay hold of *444the expression “ devise the land to be sold by my execu* tors,” which probably meant nothing more than “ direct the land to be sold by them,” as a devise of the land to the executors. This, perhaps, the particular term devise authorized, as its technical sense is a gift of land by will. But there is not equal reason for receiving in that sense the word “ leave” which is here used; and especially as it is here used. It may mean as well “ I direct or order,” my land to be sold, as that “ I give” it to be sold. We think the former was the testator’s meaning. In the first place, the will is silent in this clause, as to the person to whom the land is devised, if “leave” means “devise.” It is true, we afterwards see that an executor is appointed, and that he is expressly directed in the clause of appointment to make sale of the land. But it does not follow that, ^¡ie first provision W'as meant to be a devise of the land to 1 him. If, indeed, a testator directs his land to be sold for the payment of his debts, or for any other purpose which would naturally bring the proceeds into the hands of the executor for distribution, the power to make the sale is in the executor by implication, although he be not named in the will, as the person to make it. Sug. Pow. 160. Davoux v. Fanning, 2 Johns. Chan. Ca. 252. That arises from necessity, to prevent a clear provision of the wjjj from becoming ineffectual. The power to sell is . ° r unquestionably declared, and was intended to be executed ^ some person ; and the sole inquiry is, by whom ? The answer is obvious; by the person who is to administer the fund when raised. But the purposes of the will do not at all require an estate in the executor; and therefore, unless he be mentioned as the person to whom the gift is made, n0 estate to him ought to be implied. The rule on the contrary, is to favour the heir, and to require plain words, a necessary intendment, to disinherit him. Here a power answers every end the testator had in view, as fully as an interest in the executor; and therefore, nothing more than a power ought to be presumed. In the addi* tional clause too, by which the executor is appointed, such a Power’s expressly given to him; which is inconsistent with a previous devise of the estate to the same person. *445The sentence itself, in the original will, in its very construction, shows that “ leave” does not mean “ give,” since the lands “ left” to be sold, are those “ not given away.” That is saying, that the land specifically devised, was “given away;” and by way of contradistinction, that the others were not “ given” to any person ; but were to be i « i.i • sold and the money given.

*444A direction to sell land for the payment of foíañy1' other pur-naturally11 brings the lntotite* hands of tor, vests by imph-cation a power of sale mhim.

A devise to the execu-purpose* a sale, is presumed without a implica-7 cause1"3" giving him *445a power of afc^ame3 result, and is more beneficial to the heir

In our opinion, therefore, no estate in the premises passed to Sawyer by the will, but only a power to sell them.

We likewise think they were not devised to the wife and children as a part of “ the residue of my estate to be divided between” them. Every devise of land, even by a residuary clause, is a specific devise. It is obvious, that the testator did not intend this residue to embrace any lands specifically. It is given to the same persons to whom the slaves are specifically bequeathed; and it is given expressly “ after the payment of debts,” not merely as a charge, but with a power, likewise expressly created, to the executor to sell. The testator was aware that it might be necessary to sell some part of his estate for the payment of his debts, and he directed this land to be sold. The question is, whether he meant to substitute it for that purpose in the room of his personal estate, and absolutely command the sale, or merely meant it as increase of the fund. We think the former was his intention. The executor was not to have the election to sell the land or the slaves. The direction to sell the land, when spoken to the executor, must be taken to be positive, that the land should be sold first, and at all events; otherwise the specific legacy of the slaves might be defeated by the disposition of the residue, although it was, in the testator’s contemplation, to pass through the hands of the executor as a residue, to the same persons who werq the donees oí the slaves. But in the next place, if the clause for the sale of the land, be not necessarily connected with the payment of debts, as one of the objects of the sale, and rendered imperative upon the executor by the specific dispositions of the other parts of the estate in favour of the same persons, made in other parts of the will, *446then that clause is to be read by itself. Thus read, and standing alone, it is a precise and absolute order, that all bis land, not before particularly devised, shall be sold at all events, and the proceeds divided.' Such directions are inconsistent with a devise of the lands as part of the residue; for that would be to give to the same persons, by one and the same instrument, both the proceeds of the lands, and the lands themselves.

It is, indeed, not material to this case, whether the land descended to the testator’s children, or was devised to them and his wife. For, if the latter were true, in the event that has happened, the mother of the lessor of the plaintiff, upon the death of her mother, intestate, became entitled to precisely the same share she would take by descent from her father, upon his intestacy as to these lands, namely, an undivided half. The point would not, therefore, have been adverted to, if the respectable gentleman who presided in the Superior Court, had not declared himself of opinion, that the lessor of the plaintiff must claim under the will, or not at all. ' As we entertain a different opinion, it is deemed respectful to him to state the points and grounds of the difference.

We concur with him, then, in thinking, that the premises were not devised to the executor, nor to the wife and children. But we do not concur in the opinion, that they did not descend to the children; but on the contrary, think that they did descend; for the very reason, that they were not devised, and therefore necessarily descended. Nothing can defeat the heir, but a valid disposition to another. Whatever is not given away to some person, must descend. The heir takes, not by the bounty of the testator, but by force of the law, even against the express declaration of the testator to the contrary. If the will does not devise the land, but creates a power to sell it, then, upon the execution of the power, the purchaser is in under the will, as if his name had been inserted in it as devisee. But, in the mean time, the land descends, and the estate is in the heir. The power is not the estate, but only an authority over it, and a legal capacity to -convey it. These are elementary maxims. But it is sup*447posed, that the testator has disposed of this land, by directing a sale of it absolutely, and a division of the proceeds, so as to turn it out and out, as it is called, into personalty; and that this defeated the descent. When sold, the estate of the heir will certainly be divested ; but such a provision in the will is only the creation of a power: it is a disposition of the proceeds of the land, but not a disposition of the land itself; and that consequently descends. The doctrine of conversion is purely equitable. The law knows nothing of it. A court of equity, by considering that as done, which ought to have been done, deals with land ordered to be sold, as if it were sold. But a court of law always looks upon land as land, and has regard only to the legal title, which is unaffected by any power, whether it be a naked one; or coupled with an interest, or a trust until the power be executed.

Has the estate which descended to the heir, been divested ? It can have been divested by means only of the decree of the Court of Equity, or of the deed made by Thomas C. Ferebee, under the authority of that decree, or under the authority of his administration. We think, they are all insufficient.

An administrator cannot sell land under a power given to the executor to do so. It is a personal trust, to be executed by the persons on whom it is conferred by the will. The statute 21 Hen. 8, enables a part of those persons, under certain circumstances, to perform the duty. But the power is not, under any circumstances, transferred to an administrator; nor is he vested in any case, with authority to convey his intestate’s land, but in the single one prescribed in our act of assembly of 1797, (Rev. c. 478.) His deed therefore derives no efficacy from his office.

Nor does it derive any from the decree of the Court of Equity. It is not intended here, to question the operation of the decree upon the interest of Mrs. Ferebee, merely upon the ground that she was not a party to the suit; nor to deny, that the case made in the pleadings was within the jurisdiction of the Court, or that it was a proper one for its interposition. Undoubtedly, it is the doctrine of *448the Court of Equity, that it will compel the execution of a power at the instance of those to derive an interest under it: that it will interpose to prevent injurious consequences from arising, even from the extinction of the power; and that a trust shall not, in any event, fail for the want of a trustee. But these ends are not attainable, in reference to a change of the legal title, merely by a decree, that the land shall be sold; nor by a decree that, when sold, it shall be conveyed by a particular person, unless that person actually convey, and unless, also, he hath the legal title, or a power to convey it, which is recognized so to be by the law. The court of equity does not act upon things, but upon persons. It does not adjudicate, that land in controversy legally belongs to one of the parties; but that it belongs to him equitably; and-thereupon it decrees, that the party in whom the legal title or power is, shall convey, so as to make the equitable owner, thereby, the legal owner. The decree does not therefore constitute a title at law; nor enter into it. The title passes by the deed, which the decree compels the party to the suit to execute. If the deed be made by a person who had not the estate, nor a power to convey, it will not pass the title at law, although made under the direction of a court of equity. The person claiming under it must resort to that court for the protection of the rights ascertained in the decree, or derived under it. When it is said, that a court of equity will not allow a trust to fail for the want of a trustee, it is not meant, that the court can appoint a trustee, who, by virtue of the appointment, gets the legal estate; but that the court will hold the legal owner, whoever he may be, to be a trustee, in respect merely of the use that may be made of the legal estate; will raise and distribute the fund according to the trust; and if necessary for the purposes of the trust, will decree and compel such owner to convey. In other words, the court of equity cannot by decree, make that a legal title, which a court of law says is not a legal title. In the case under consideration, the Court could have directed a good title, if the proper parties had been before it. According to some opinions, when executors renounce the probate of *449the will, they may yet execute a power to sell. Sug. Pow. 165. At all events, the conveyance of the executor and the heirs would have passed the title. But the deed of Ferebee, could, at most, pass only his estate as tenant by the courtesy. How far the Court of Equity might now go in decreeing proper conveyances, or whatever it might do to sustain the sale made under its direction, as against the lessor of the plaintiff claiming as the heir of his mother against the vendee of his father, who jure mariti was entitled to her share of the money raised by the sale, or claiming under his grandmother, who was a party to the suit, it is not for us, sitting where we are, to say. It is sufficient for the plaintiff here, that his lessor’s legal title has not yet been divested.

This question has been treated as if the decree had directed Ferebee to convey. It is but justice to that Court, however, to remark, that it does not. No doubt, the Court did not intend so to direct. It is against the course of the Court to do so, until a sale has been reported and confirmed ; which does not appear ever to have been done. It would not have been confirmed, unless the Court ■could have directed a title that was good, or the purchaser had been willing to rely on the equitable one under the decree. The latter is the utmost the defendant can now insist on; and that is not a defence in this action.

The observations upon conveyances made under the directions of the Court of Equity, will readily be seen to have no application to sales under execution from that Court, or for partition. In those cases, the deeds of the sheriff and clerk and master operate by virtue of the legal authority expressly conferred by statute.

The statute of limitations does not bar the plaintiff. If actual seisin be here, as in England, necessary to the •consummation of the title by courtesy, yet we see no reason to doubt that Ferebee and wife had it. No possession adverse to them is stated. Consequently, they, as the owners, Were constructively in the actual possession. Upon such a possession, they could have maintained trespass. Now •actual seisin is the possession of land by the freeholder. But furthermore, no possession by the defendant, or those *450under whom he claims, prior to this suit, is stated in the case.

The Court is therefore of opinion, that the judgment of the Superior Court is erroneous, and must be reversed; and that judgment, upon the case agreed, be rendered for the plaintiff.

Pee Ceeiam. Judgment reversed.