Bell's Appeal

The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— The reasons given by the learned auditor for the distribution made of the fund in this case are so satisfactory that we need do nothing more than notice a point made on the argument, which does not seem to have been made on the hearing before the auditor. The appellants’ counsel contend that the 8th section of the Act of 22d April 1856, Pamph. L. 533, repeals the 12th section of the Act of 24th February 1834, Pamph. L. 75, and that now, under the Act of 12th March 1800, 4 Dallas 593, in all cases where the testator has devised or directed his real estate to be sold, without naming or declaring who shall sell the same, the power may be exercised by the surviving executor, without the control and direction of the Orphans’ Court having jurisdiction of his accounts, with the same effect as it might have been exercised by such executor before the Act of 1834, and, therefore, that under the private sale made by the executor in this case a good equitable title to the land, which the testator directed to be sold, vested in the purchaser under whom the appellants claim. But we are of the opinion that the 12th section of the Act of 1834 was not intended to repeal or impair the Act of 1800, giving power to the surviving executors to sell and convey real estate when the direction and authority to sell are not given to any person by name or description, but merely to regulate the mode or form in which the power should be exercised. There is no inconsistency between the two acts, and it would be a strained construction of the Act of 1856 to hold that it was intended to repeal by implication the 12th section of the Act of 1834. If the legislature had intended its repeal, it would have been easy for them to have done it by apt words. Whatever, else may have been their purpose, it is clear' that they did not intend to repeal, by implication, so wholesome a provision of the statute.

If the direction to sell the land and divide the proceeds worked a conversion of the land into money, and vested the fee in the executor, leaving to the legatees only an interest in the proceeds, the executor had no power to sell the land at private sale; nor had he any power to sell the appellee’s interest. He was not her authorized agent to make the sale, and he did not profess to make it as her agent, or under any authority derived from her. He cpuld only make a valid sale of the land by applying to the Orphans’ Court and obtaining its order and direction. And as he failed to do this, the sale which he made vested in the purchaser no title to the share of the appellee’s mother, either in the land or its proceeds. If he had reported the sale to the court, and obtained an order confirming it, on due notice to all parties in interest, that might have cured the want of a previous ord'er and rendered the sale as valid and binding as if made under the order and direction of the court.

Decree confirmed, at the costs of the appellants.