Lantz v. Boyer , 1876 Pa. LEXIS 153 ( 1876 )

Mr. Justice Sharswood

delivered the opinion of the court,

It may now be considered as definitively settled, that whenever a power is given by will to executors to sell real estate with a view to the distribution of the proceeds among legatees, such power belongs to them virtute officii, and may be exercised by administrators de bonis non with the will annexed, under the 67th section of the Act of February 24th 1834, Pamph. L. 86, which provides that “ all and singular the provisions of this act relative to the powers, duties and liabilities of executors are hereby extended to administrators with a will annexed:” Evans v. Chew, 21 P. F. Smith 47. It was held in that case, that it mattered not whether there was an absolute direction so as to work an immediate conversion, or the power was discretionary. It seems equally clear tha.t it makes no difference whether the distribution is to be. immediate or upon the expiration of a certain period of time, or upon the uncertain contingency of a life or lives. In the case before us, a life estate was given to the widow, and absolute direction to the executors to sell, if she should desire it, and the proceeds of the sale to be invested in good real estate security, the interest to be paid to the widow for her life, and a part of the principal, if she should desire, to be invested in a house for her use for life. Eventually, however, the testator provides, “ as to all the rest and residue of my estate, real, personal or mixed, it is my will that the same be distributed between my wife and children according to the intestate laws of this Commonwealth.” Now the wife’s share, when her life estate should expire, would certainly be a part of this residue. He makes a common fund of his estate, “ real, personal or mixedand by whom is the distribution to be made ? By his executors, certainly, and that virtute officii. This duty of distribution then devolved of necessity upon the administrator de. bonis non cum testamento annexo. If so, he must be entitled to receive and invest the fund, and hold it so invested until the period of final distribution shall arrive. We are of opinion then that the plaintiff below, Jerome L. Boyer, the administrator with the will annexed of B. Frank Boyer, deceased, is competent to vest in the defendant, C. R. Lantz, the title of B. Frank Boyer, deceased, to the premises, by deed executed by him in pursuance of the powers in the said will contained, and of said request of Lizzie Boyer, the widow of said B. Frank Boyer, deceased, and for the purposes in the said will mentioned.

Judgment affirmed.