Ex parte Huff , 1845 Pa. LEXIS 317 ( 1845 )

Kennedy, J.,

after stating the case. — This court are satisfied that the executors had full power to sell and convey the lot or piece of ground in question, by the terms of the will, in the manner they did. It is clear, by the express terms of the will, that they might have sold it absolutely in fee without reserving any rent, or that they might have sold and conveyed it in fee, reserving a ground-rent in fee, without allowing the vendee the privilege of redeeming it from the rent at any time; and had they sold and conveyed the lot in this manner, it may be that they would have had no right or power afterwards, under their authority, on the will, to have released the ground-rent upon receiving a sum of money, which, put out on interest at six per cent, per annum, would have produced an annual interest equal in amount to the ground-rent reserved to be paid annually. But it is very clear (hat the executors might have made an executory contract for the sale of the lot, by agreeing with (lie purchaser to receive the purchase money in instalments, payable annually, or at other periods as agreed on, and to malee a deed conveying the same in fee upon the whole of the purchase money being paid. If it was competent for them then to make the entire contract for the sale executory, what reasonable objection can there be to their making it so in part? I can see none. The stipulation contained in the deed, allowing the purchaser to redeem the lot from the payment of the ground-rent, at any time within the ten years, may be regarded as executory, and as forming a part of the. contract for an absolute sale, out and out, if the purchaser should elect to have it so, and therefore as coming fairly within the powers given them by the will. And seeing by the terms of the deed of conveyance, or indenture executed by and between the parties, it is provided that the executors shall receive the redemption money, if paid within the time specified, and thereupon execute the release, they are, therefore, the proper, and indeed the only persons capable of doing it. From the nature of the duties to be performed by them under the will, they must be considered trustees as well as executors: they are to hold the money arising from sales of the real estate in trust for the benefit of the wife, the executrix herself, to whom the use of it is given by the will during her life; and for those again ultimately entitled to it thereby in remainder. It was a sale of the qstate to the vendee in fee, to be held by him and his heirs, upon their paying the ground-rent mentioned in the deed, with an election, upon their part, to hold the estate absolutely and entirely released from the payment of the ground-rent, upon their paying at any time within the space of ten years, the gross sum of $533 33. This was a sale of the' estate in fee, leaving it to the election of the vendee, to be made within a limited time, whether he would continue to hold the estate, by paying the ground-rent, according to the terms of the deed, or would take and hold it released therefrom by paying the gross sum. It appears to me that it was not only competent for the vendors to sell the estate in this way, under the will, but that they have full power, under the same, to receive the redemption money and to release the vendee, or those claiming under him, from all further payment of the ground-rent. The mode of exercising the power given to dispose of the estate in this way, was doubtless the most favourable for those who were intended to be benefited by the exercise of it, that could have been adopted, and is therefore entitled to great favour. We therefore think the case presented by the petitioner is not such as requires the interposition of this court.

The petition is dismissed, and the petitioner ordered to pay the costs of it.