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"It can scarcely be imagined that a testator when he intrusts his executors with a power of selling land, should mean to have those for whose benefit he directs the sale, disappointed by the death of one of the persons invested with an authority, which the survivor is equally capable of executing." Coke Lytt. 113. Hargrave's note.

"Where a naked power is Gested in two or more nominatim without any reference to an office in its nature liable to a survivorship, as an executorship is, it would be a contradiction to the general rule, to allow the power to survive : but where a power of selling is given to executors, or to persons nominatim in that character, it is not wholly irreconcilable with the rule, to deem a surviving executor a person within the description. For by the death of one executor, the whole character of executors became vested in the survivor, and the power being annexed to the executors, ratione officii, and the office itself surviving, why should not the power annexed to it also itself survive, as well as where it survives by reason of being coupled with an interest? But whether lord Coke's notion of the power not surviving, or the opposite one most conformed to strictness of law, is not now of any great importance, as such a power though ex, tinct at law, would certainly be enforced in equity. His distinction is taken in case of a devise that passes no interest, or estate to the executors; but merely a power or authority: but, though admitted in point of law, it would not avail in a court of equity, as this jurisdiction, notwithstanding the extinction of the power at law, would compel the execution of it, for the sake of those for whose benefit the power was. given." Idem.

Powel on devises controverts the correctness of taking no distinction between a devise that executors shall sell land, and devise of land to executors to be sold, which had been doubted by Hargrave. This on ground of naked authority and of an authority coupled with an interest. And he points out a case of a bona fide purchase from the heir, where a court of equity would not compel a surviving execuior to execute a sale, who had had but a naked authority,

whereas they would compel where it had been coupled with an interest which others had in the execution of it. But he admits that, "take the law to be that all persons endowed with a naked authority nust unite in the execution of it, it is with an unless where the evident intent of the testator renders a contrary construction absolutely necessary." Powel,

310.

"If one make three executors and devises lands to be sold by his executors, and one of them die before the time of the sale, the other two may sell; because in that case the intent of the testator is taken to be that such executor who shall be alive at the time when the land is to be sold, shall sell; and where this construction seems to accord with the words of the will and the intent of the testator." Idem.,

"Where the devise is to bring up and educate children, this is an authority coupled with an interest.

To pay debts, to perform legacies, is an authority coupled with an interest: an interest in the executor by devise, and not an authority or confidence only." Idem.

Having made the above citations, I assume it, that a refusing or renouncing executor, is the same as a defunct executor. For he is defunct quoad hoc. I mean as to acts in which he refuses to join, because he has refused to take the administration of the will.

But it is evident to me on a view of this will, that the power to sell is not merely nominatim to W. L. &c, as trustees for the mere purpose of sale; but in the capacity of execu tors, ratione officii, to sell. There were other purposes for which they were constituted than the mere sale of the land. And what is more, the authority in this case, is not naked, but coupled with an interest; debts are to be paid; remainder after sale, if any thing, to be distributed to wife, a third part; to each child, an equal share; if wife cannot bring up and maintain children properly, the executors to take them away, &c. In order that my will may be executed, I constitute as executors, &c. So that upon all grounds I can have no doubt of the power to sell in this case.

I add only that I sanction so far as the weight of my opinion may go, the doctrine, that, on an ejectment, we will consider that done which would have been ordered to be done by a court of chancery; and where an executor has sold who could have been compelled by a court of chancery to sell for the purposes of a trust, the sale will be supported. It is to be presumed in this case that the trusts could not have been executed without a sale; for the testator contemplated the necessity of it in directing a sale.

One observation more, and I have done. I take it that where any thing directed by the testator to be done, cannot be done, but by a sale, it is strong evidence of his intent, that such of his executors shall sell, as remain, or who do not refuse the administration. I know no distinction between a refusing or renouncing, and a defunct executor; but this, that an executor may refuse as to the real estate, but may act as to the personal; or after renouncing the living execu tor, may be allowed to announce his willingness to act, and come in to an agency in the execution of the will, whereas the defunct, cannot.

RESPUB. VS. MLEAN.

THIS case had come before the court at an early period : 1801 or 1802. Chief justice Shippen, Yeates, Smith, and Brackenridge, on the bench. The court were divided on the question, which had been argued at great length and with great ability. C. J. Shippen, and Brackenridge, of opinion that the justice falling into a new county could not act by virtue of his old commission; Yeates, and Smith contra; so that no decision could take place. Chief justice Shippen, and justice Smith, having deceased, left the bench still equal, and opposed in their sentiments. But on the appointment of chief justice Tilghman, the matter was re-argued, and the court's opinion delivered. It was by the casting voice of chief justice Tilghman, decided that he could not act.

I have not the opinions of chief justice Shippen, Yeates of Smith, nor that of chief justice Tilghman, but I give my own, which may serve to give some idea of the reasoning on at least one side of the argument.

OPINION.

M'Lean the defendant was acting as a justice of the peace in Adams county. Rule to shew cause why an information in the nature of a writ de quo warranto shall not issue against him.

Brackenridge J. A county is a corporation, with commissioners, treasurer, coroner, sheriff, constables, justices of the peace, judges of the courts, &c. It is struck off, front the state at large, and may be, as in this case, within the bounds of an old county; but it becomes a distinct and independent body.

Can the commissioners, treasurer, coroner, sheriff, &c. of the old county, continue to act within the new? Not unless the authority is specially saved, in the act of incorporation of the new. This has been done in the erecting many counties. It has been done as to certain officers in erecting this county: "The sheriff, coroner and public officers of the county of York shall continue to exercise the duties of their respective offices, within the county of Adams, until similar officers shall be appointed agreeably to law within the said county of Adams." 4 State laws, 533. Is a justice of the peace, such an officer, as is within the meaning of this act? If so; he is, at least, supersedable, and superseded at all times, by the elections, or appointments of others of the same description and authority, in the ordinary way, provi ded by the constitution, and the laws of the commonwealth.

But can an officer of the old county, the justice of the peace in question, falling as to residence within the new, act within the new, independent of any legislative act? How can he become known to the new? There seems some copula wanting to connect him with it.

It may be matter of authority, to consider what has been the legislative construction in the case; by implication we have abundant evidence.

Our first legislative act is that of erecting Lancaster county. By this act it is provided, "that the county of Lancaster shall enjoy all and singular the jurisdictions, powers, rights, &c. which any other county doth, or may or ought to enjoy." But nothing is said, specially, of the appointment of the justices. 1 State laws, 242.

The act erecting York county, specially provides even for the jurisdiction of the supreme court, and justices (meaning county justices) shall be commissioned by the governor. 1 State laws, 326.

In erecting the counties of Cumberland, Berks, Northampton, Bedford, Northumberland and Westmoreland, it is provided, in the same words as to the Supreme court and as to the justices. 1 State laws, 328, 352, 562, 607, and

663.

These acts were under the proprietary government.

In erecting the county of Washington, under the constitution of September 28th, 1776, the jurisdiction of the supreme court is preserved, and it is directed that justices. shall be elected in the townships and commissioned by the president and council. 1 State laws, 874.

In erecting the county of Fayette, provision is made, in like manner, and also for the first time, it is provided in the act of incorporation, " that the justices of the peace commissioned at the time of passing this act and residing within the county of Fayette, or any three of them, shall and may hold courts of general quarter sessions of the peace and general jail delivery, and county courts for the holding of pleas, and shall have all and singular the powers, rights, jurisdictions, and authorities, to all intents and purposes, as other the justices of courts of general quarter sessions and justices of the county courts for holding of pleas, in the other counties may, can or ought to have in their respective counties." 2 State laws, 155. It is observable, that it is as judges of courts, authority is given them, not as justices of the peace, generally, for the keeping of the peace and the recovery of debts, By the constitution of 1776, chap. 11, sect. 26, the legisla

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