Blount v. Moore , 54 Ala. 360 ( 1875 )

BEICXELL, C. J.

The power of the executor, under the will, to make sale of the testator’s lands, is not questioned, either in argument or by the pleadings. There is a general direction that the real estate be sold for the payment of debts, without stating by whom it is to be made. Pecuniary legacies are given, which it is apparent could have been given only in expectation of their payment from the proceeds of the sale of the real estate, the personal assets not being sufficient for that purpose. The general principle is very clearly stated in Winston v. Jones, 6 Ala. 554: “ No precise form of words is' necessary to the creation of a power ; if the intention to confer the power is apparent, to enable the executor to execute the trusts of the will, the power will be implied.” In Tylden v. Hyde, 2 Sim. & Stu. (1 Eng. Ch.) 238, there was, as in this case, a mere general direction in the will that real and personal estate should be sold, without saying by whom, and a devise and bequest of the proceeds to be divided amongst the testator’s sisters ; a power to the executors to make the sale was implied. The proceeds of sale were of necessity to pass under the control of the executors, and be divided by them, in the execution of the trusts of the will. Here, the law charged the executor with the payment of the debts of the testator, as his primary duty, and then with the payment of legacies. This duty he could not perform unless' the proceeds of the sale passed into his possession. The implication that he should make the sale, the will directed, is unavoidable.

A sale was made by the executor, in execution of the power, which is not impeached because of any fraud or collusion between him and the purchaser, nor because of any unfairness attending it; nor is it pretended the sum for which it was made was not the full value of the lands sold. The only ground on which it is assailed, is, that Confederate treasury notes were received from the purchaser as the consideration money by the executor, when they were the circulating medium of the country. This certainly does not render the sale void or voidable. In Waring v. Lewis, 53 Ala. 615, we held, an executor or administrator had power to receive such notes in discharge of choses in action, assets in his hands to be administered, or of judgments recovered by him in his representative capacity. In the absence of fraudulent concert between him and the person paying, a payment made in • them was in legal effect a satisfaction of the demand equally with a payment in gold or silver. The payment to the executor of the purchase money in Confederate treasury notes was, as to the purchaser, a’ full satisfaction, entitling him to the conveyance of title which was made. "What may be the liability of the executor because he accepted such notes in payment, is a question not now arising. That depends on the want of diligence and good faith which may or not be imputable to him, under all the circumstances attending the transaction.—Key v. Jones, 52 Ala. 238.

The decree must be reversed and the cause remanded, with instructions to dismiss the bill as against the appellant, Mary A. Cocke, and the appellee will pay the costs of this appeal.