#### WILLIAM H. DAVIS v. CHARLES R. HOWCOTT, et Uxor et al.

December, 1836.

Where a testator devises as follows, — “ I devise to my wife, the use of the lands and buildings whereon I now live, for, and during the term of her natural life; and after her death it is my will and desirelhat the said land, &c. shall be sold by my executors, and at their discretion; and the proceeds thereof be equally divided between my four children, or the survivors of them — and before the death of the widow, she and the executors, upon petition, procured the land to be sold by the clerk and master, under an order of the court of equity, and the purchase-money was paid to him, and never came to the use of the children: It was held, that the latter were not barred of their legal title to the land.

AndRew- Knox, by his last will and testament, duly executed, to pay lands, devised as follows: — ■“! give, devise, and bequeath, unto my beloved wife, Sarah Penelope Knox, the use of the land and buildings whereon I now live, for and during the term of her natural life; and after her death, it is my will and desire, that the said land and buildings shall be sold by my executors, and at their discretion; and the proceeds thereof to be equally divided between my four children, or the survivors of them, say Lavinia Matilda, Andrew, Nathaniel B., and Louisa Matilda Knox, and their heirs forever.” Of this will, he appointed his wife Sarah, Nathaniel Bond, and Ambrose Knox, executors; the two latter of whom, after the death of the testator, proved the will; but the widow neither qualified nor acted as executrix. At the April Term, 1830, of the Court of Equity for the county of Chowan, the widow and the executors filed a petition, ex parte, in which they set forth these facts; and further represented that the land attached to the dwelling-house, consisted of ten acres only: that the petitioner Sarah, (the widow,) did not intend to reside there: that the rent of the premises, would not equal the interest on the sum for which they might be sold; and that the premises, if rented out, would unavoidably be much injured: that the petitioners were desirous that the premises should be sold, before the expiration of the life-estate of the petitioner, Sarah: that the purchase-money might be put at interest, to be paid to her *461daring life, and the principal thereof secured to be paid to the other petitioners, for the benefit of the children, at the expiration of the life-estate; but that as the rights of infants were concerned, they were unwilling to make the sale, without the aid of the court; and thereupon they prayed that a sale of the premises might be made, and the purchase-money so secured, that the interest thereof might be paid to the widow during her life, and the principal, at her death, to the other petitioners, for the benefit of the children, the devisees named in the will. From the defective memoranda of the proceedings of the court, it was to be collected that some order for a sale was made, in pursuance of this petition: that the sale was conducted by the clerk and master: that he reported to the court at a subsequent term, that a sale had been made to Hugh B. Knox, at the price of two thousand five hundred dollars, on a credit of six, twelve, and eighteen months; 'and the sale so reported, was confirmed by the court. "J No directions were given how the amount of the purchase-money should be secured, nor to whom it should be paid: no order was made for collecting the purchase money.

No further proceedings were ever had by the court, nor by the executors, in relation to the subject-matter. The proofs and admissions of the parties, also showed that Hugh B. Knox, the purchaser, when he bid off the property, gave his promissory notes to the clerk and master for the price, and took from him a paper-writing certifying that he, Knox, had become the purchaser at the sale, had given notes for the purchase-money, and that he, the clerk, would make a title at any time. It also appeared that Knox paid off these notes to the clerk, who has since died and died insolvent. Two of the children of Andrew Knox, the testator, had^also died¿; and in April 1825, Sarah Penelope Knox, was appointed guardian to Andrew Knox and Louisa Matilda, the surviving children. In April, 1826, the sheriff of Chowan county having an execution against Sarah Penelope Knox, by her directions, and in her name, applied to the son of the late clerk and master, who was also his executor and successor in office, and obtained from him one thousand two hundred and fifty-*462three dollars, forty-two cents, part of the money so paid by Hugh Knox, which was appropriated to the discharge of the execution. This payment to her order, was made under a declaration, that in strictness she was not entitled to the money, but that the risk of making it would be guarded against by an indemnity. Sarah Penelope Knox had died also insolvent. Hugh Knox also died, without having obtained a deed for the land, and at an execution sale against his heirs at law', the plaintiff purchased his estate in the said land, and received a conveyance therefor from the sheriff. Andrew Knox, and Louisa Matilda Knox, who has intermarried with Charles Howcott, afterwards instituted an action of ejectment against the plaintiff, to recover the land. In the course of the suit, the plaintiff obtained a release and conveyance, from Andrew Knox, of his undivided share in the premises ; but being unable to make an effectual defence against Howcott and wife, a judgment was rendered against him as to their moiety. The plaintiff then filed this bill against them, and the executors of Andrew Knox, the testator, and the administrator of Sarah Penelope Knox, praying that the executors might be decreed to make him a title ; and for an injunction against Howcott and wife; and for general relief. The injunction was granted on filing the bill, and had been continued until the hearing of the cause.

Kinney, for the plaintiff.

Devereux, for Howcott and wife.

Gaston, Judge,

after stating the case as above, proceeded as follows: — The ground on which the plaintiff rests his claim to the aid of the court, is, that by his purchase at the execution sale, he acquired the estate of the late Hugh B, Knox, who by virtue of his purchase at the sale of the clerk and master, and of the payment of the purchase-money, was, in equity the owner of the land in dispute. If both these positions can be sustained, it is not easy to see why the plaintiff did not resist the recovery of Howcott and wife at law. The sale to him, if valid, is made so by our act of 1812, which passes to the purchaser not only the equitable interest of the cestui que trust, but *463the entire legal estate of the trustee.' But as this objection ° J has not been raised on the pleadings, and even had it been raised, the plaintiff might yet have been justified in asking for assistance in having his title established and .cleared from doubt, and as the injunction might be sustained as incidental to the main relief, we have not permitted ourselves to be arrested by it in the consideration of the case. Many objections were taken'in argument to the regularity of the proceedings under which the plaintiff purchased at the execution sale, some of which objections it would be difficult to get over, but we forbear from examining them, because, assuming that they are all unfounded, and that the plaintiff by that purchase acquired the estate of Hugh B. Knox, we are unable to see that Hugh B. Knox had any estate, or any right in equity to demand that conveyance or appointment, from the executors of Andrew Knox, which the plaintiff seeks as his assignee.

The will of Andrew Knox contained no devise of the lega estate of the land in question, except to his wife for the term of her life; a naked power, wholly without an interest, was thereby granted to his executors, and the land descended to his children and heirs at law, subject to the estate for life, and liable to be divested, when the power so given should be validly executed. An appointment by the executors, pursuant to the power, would operate as the designation of a person to take under the will, and the ulterior legal estate would then pass to the appointee, as the devisee of the testator. It is perfectly clear that the executors cannot be compelled to do any act which is not warranted by the scope of the power confided to them. Their sole authority is derived from the testator; what he has empowered them to do, they may do; if they refuse, they may be compelled; if they have done it, but unconscientiously withhold the formal evidence of the act, it may be extorted from them. The question presents itself, have the executors sold the tract in question to Hugh B. Knox, conformably to the trust reposed in them ? If they have, he, and those who may represent him, have a right to demand such a deed as shall authenticate the sale, and complete the title to the land.

*464Whether a power of sale, after ítenantfor life, can be fore that Butceiv^7 tainiy it when the words “af-death,” ap-sde^ncT are not in-mere limi ¶ tatipn of for life!1*8

It is a doubtful point upon the authorities, when there is a devise to one for life, and that after his decease the janc> gjjajj whether a sale can be made until after the decease of the tenant for life. However this may be, when an intent may be collected, that the testator did not J mean by the words, after the decease of the tenant for to an<^ PostPone the time of the sale, but only to mark the determination of his estate, '(see Hargrave’s note to Co. Lit. 113, and Vredale v. Vredale, 3 Atk. 117,) we think that in this case, such an intent is repelled by the direction given with respect to the application of the proceeds of the sale. The testator, after the devise for life» expresses his wish that the land should be sold, and the proceeds divided among his four children, or the survivors of them. It is admitted by the counsel on both sides, and the pleadings proceed upon the understanding, that such is the legal interpretation of the will, (therefore ^ *s ^at ^ representatives of the deceased children are not brought before the court,) that by survivors are meant those living at the death of the tenant for life. The sale directed, is for the purpose of dividing among these children, the value of that which is itself unsusceptible of partition. If all these children had died before their mother, he unquestionably did not direct that a sale should then be made. The power was a trust to be called into action only for the benefit of the cestui que trusts. -If but one child had survived the tenant for life, the executors might well have hesitated, in undertaking to make a sale. The late case in the Court of Exchequer, in England, referred to by Mr. Sugden, in his Treatise on Powers, (first American, from the 3rd London edition, 273,) is a direct authority in point.

If this difficulty could be removed, another presents itself, which in our opinion, is conclusive — the executors did not sell to Hugh B. Knox. We do not rely now on the forms with which the pretended sale was conducted, irregular and extraordinary as they were, but upon the fact that the alleged price was never paid to the executors, or to any person authorized to receive it. Whatever a court of equity, by virtue of its controlling and conser*465vative power over the interests of infants, may order in regard to the disposal or change of their property, it acted in no such character here. The infants were in no way before the court. Their rights were not represented; no decree was rendered, or could have been rendered, changing those rights; the petition was wholly an ex parte one, by the widow who held the life-estate, and the executors who had a power of sale under the will. The court could not enlarge, change or . modify that power, in any respect. The sale, whether made with or without the sanction of the court, could be rightfully made only by the executors. If they employed the clerk and master to set up the property at auction, the bidding might be regarded as one at their auction. If he received the money as their agent, for that purpose appointed, it would have been a receipt by them. But the whole character of the transaction shows that this was a pretended sale by the clerk asa judicial sale, and that the receipt of the money by him, was by colour of his authority as clerk. The certificate given to Knox, is signed by him as clerk and master, recites a sale made by him under a decree, and obliges him to make a deed whenever demanded. A report of the sale is made by him in his official character; and by an order of court he is compensated for his services in conducting the sale, as such. Had the sale been valid as a judicial sale, the clerk and master would not then have been authorized to receive the money, without an order of the court to collect it — and the purchaser wishing to pay, in such a case, before an .order to collect, can only save himself from hazard, by obtaining permission to pay it into court. No title can be made until the court authorizes it; and the court will not direct a conveyance before it ascertains that the money is effectually secured for all those who may thereafter become entitled to it. If the master, as master, could sell, the payment of the price to him, under these circumstances, unless the money afterwards reached the hands of those to whom it belonged, would not pass the equitable estate in the subject-matter of the purchase. Still less could it have that effect, when the master had no authority even to make the sale.

*466The uncontested insolvency of an intestate does not entitle Ills administrator to costs.

The case may be a hard one upon Hugh B. Knox, or on the plaintiff, who claims to have succeeded to his rights. Nothing appears to raise a suspicion that he did not act in good faith. But we cannot make a decree to divest the heirs of Andrew Knox of the inheritance which descended to them from their father, unless the sale has been made, which he authorized by his will. In equity, there is no sale, without payment of the purchase-money. By the misplaced confidence of the alleged purchaser, instead of this money having been paid to those who were interested to receive it, and secured to the intended objects of the testator’s bounty, one-half of it has been pocketed by the insolvent clerk, and the other half appropriated to the personal necessities of the insolvent widow. The injunction must be dissolved, and the bill dismissed with costs, as to the defendants, Howcott and wife: as to the other defendants, the bill is to be dismissed, but without costs. The executors have come before the court under very unfavourable circumstances. The misconduct of the widow deprives her estate of a right to remuneration for the expenses of this litigation ; and an administrator who relies upon the insolvency of his intestate, and where that insolvency is not contested, is not on that account entitled to costs in equity. Adair v. Shaw, 1 Sch. & Lef. 280. Vredale v. Vredale, 3 Atk. 119. Humphrey v. Morse, 2 Atk. 408.

Per Curiam. Bill dismissed.