From Rowan.
1. Power of executors to sell lands. Presumed renunciation of an executorship. A being seized in fee of lands, and possessed of personal estate, made his will, and directed "his executors therein named to pay and discharge all his just debts, and to sell and dispose of whatever they might think proper and best of his estate to satisfy his debts." He appointed B, C and D executors, and died in 1778. B and C qualified, and undertook the execution of the will. D never qualified, nor intermeddled with the estate, nor formally renounced the executorship. In 1798 B and C sold the lands to pay the debts, D being alive and not refusing to join in a deed to the purchaser: Held, that the deed of B and C was good to pass the title, they being answerable to creditors for the debts, and the testator having left it to the discretion of his executors to pay the debts out of any part of his estate they might think proper. The power to sell is attached to the executorship, and not to the persons named executors.
2. The Court will presume a renunciation after such a lapse of time. A formal renunciation in open court is not necessary; it only affords easier proof of the fact.
BY THE COURT.
The lands in question were sold to pay the debts of the testator. He did not set apart a particular portion of his estate for the payment of his debts; he has left it to the discretion of his executors to pay his debts from the sales of any part of his estate. The executors are to pay the debts; creditors look only to such of them as undertake the execution of the will, and it seems necessarily to follow that those who qualify and undertake the execution of the will shall be competent to do what the will directs to be done. The power to sell is attached to the executorship, not to the persons named as executors. But were it otherwise, the Court will necessarily presume, after such a great lapse of time, that Alexander Martin has virtually renounced the executorship. A formal renunciation in open court is not indispensable; it only provides an easy method of proving the fact. Other evidence may be equally satisfactory; and none could be more so than lying by for the space of twenty years, and during that time never intermeddling with the estate. Let judgment be entered for the plaintiff.
Cited: Wood v. Spark, 18 N.C. 395.
(86)