Mattox v. Eberhart , 38 Ga. 581 ( 1869 )

Brown, C. J.

Under the law of this State, as it existed prior to the adoption of the Code, au executor had the right to sell the property of the testator at private sale, when the will authorized a sale, without prescribing how it should be made. And in such case, if the sale was fairly and honestly made, the title passed to the purchaser. 1 Ga. Rep., 324.

Section 2526 of the Revised Code changes this rule. Under this section the executor can not sell at private sale, unless the will authorizes a sale in that manner. If the will directs a sale without specifying in what manner it shall be conducted, the direction of the will stands in the place of the order of the Court of Ordinary, authorizing such sale, and the subsequent proceedings must be the same as the law requires in case the property is sold under the order of said Court.

The question in this case is one of intention. Did the testator intend to clothe the executors with power to sell at private sale? We think he did. In providing for the distribution among his children when the sons came of age, or the daughtérs came of age or married, he directed that each have $3,100 00 or $3,200 00 in money or property,, as 2nay be" most convenient to the estate and most suitable to the party receiving it; and to enable his executors to carry out the foregoing objects, he gave them power to sell any of the property, or to buy or exchange for other property, taking care to give a full statement and history of all such sales, purchases or exchanges; to the Court of Ordinary,

Now it seems very evident that the testator intended that the executor should select such property for each legatee as would be convenient and desirable, as far as it could be done, consistently with the interests of the estate. If he found a tract of land, for instance, that suited, and was desired by one of the legatees, he might sell property of the estate to raise money to purchase it, or he might exchange a tract of land or other property of the estáte for it. From the very nature of the transaction, it is evident that the testator did not expect, or intend, that such an exchange, which is in fact a sale of one thing for another, should be made at the Courthouse door, after the advertisement, and in compliance with the forms prescribed by law, in case of public sales.

This view of the case is strengthened by the requirement of the testator, that the executor should give a full statement and history of all such sales, purchases and exchanges, to the Court of Ordinary. , It is true the law requires the executor to make a return of his public sales to the Court of Ordinary-Rut the language of the testator, which requires the executor to give a full statement and history of the sales, purchases, or exchanges made by him, seems to contemplate more than the common return made to the Court of Ordinary. He had clothed his executors, in whom he had full confidence, with lai’ge and plenary powers to act in advancing and settling his-children when they came of age, as he would have acted had he been in life. And as he had given them these ample ■ powers to represent him after his death, he required them to keep up, not only a statement, such as is commonly made upon the Ordinary’s books, but he also required them to place upon the record a history of their actings and doings in the premises.

Let the judgment be reversed.