
    Anthony Chanet vs. D. & B. Villeponteaux.
    A native of France, who came into this coiihtry a's early as 1774', andYegifléñ*-here ever since, exercising all 'theriglits’of citizenship, ia-h eitizeirby virtue of .the Declaration ol Independence, and may Jalee..and ho Id-.lands,.by inheritance or purchase. . . ■_ . ; . ., -
    Where a testator devised lauds, “to.be sold at the discrete! of:his exeeu-* tors,” to be vested in securities "for his nephew, Sic', and‘appointed two executors, orifrof whom only qualified, and the other reiribvé'd.fitim flig. state, he alone, who qualified, may sell and convey'the lands. . , .
    A naked power given to two by name, must be .executed jointly, but wheji tlie power is coupled with a trust, and it is evidently the'iñfentíoh’of the testator, that the trust shall be executed, in order to effectuate some provisions of his wit!, the.n the power may.be exercised by one' executor, jthe other not having qualified, ihe power being virlulp qfficii, and, not personal,
    Trespass .to try title..
    Tried before Mr. Justice Waties, who njade the íó'lloiy-' ing report:*-'
    
      “ The plaintiff claimed certain lands which were de-¡ vised by C. DeTolinaire, deceased/' to be sold at the dia-cretion ofhis executors,” and the proceeds tobe vested by them in public securities for the use of the male children of his nephc\vv L. F. De Tolinaire. The plaintiff had purchased the lands from Hugh Patterson, the only qualified executor of C. D. Toli-naire. Another executor was appointed by the will, but he went to France without having qualified, where he is now living, but has declared his determination Kot to return to this state. The lands were acquired by Air. DeTolinaire as heir to his-daugbter, in whom they vested under a marriage settlement, made on her mother, and who died intestate as to her real estate. The defendants claim them as the next of kin of Miss DeTolinaire, the daughter, on the ground that her father was an alien. It was also contended by their counsel that the plaintiffs title was invalid, because the-power given to the executors of Mr. DeTolinaire to sell was a joint one, and the sale of the lands to him was by one executor only.
    I was of opinion that those objections were not well founded.
    The first was fully- answered by shewing that M- De Tolinaire came from France to this country in the year 1774, had ever -since resided here and exercised all the rights of citizenship, and which, I thought, had been virtually conferred on him by the declaration of independence.
    The second objection was of more weight, but did not appear to me to be applicable to this case. A naked power given to two persons by name must indeed be executed jointly, but where the power is coupled with a trust, and it is evidently the intention of a testator, that his lands shall be sold in order to effectuate some provisions of his will, there the power may be exercised by one executor, if only one qualified and the others renounce or refuse to act; for the power in such a case is not personal, but given viriute officii, (Powell on Devises, 297. 307. Howell vs. Barnes, Cro. Car. 382. " Wrcmldin vs. Osgood, 14. Johnson Ti. 553. Jackson vs. IPitts 15. Johnson R. 348.J  I considered it also a case within the statute 21, Henry 8th, made of force here, (P. L. 45.J which authorises a qualified executor to act where the rest renounce or refuse to act. In the present case the object of the testator was to distribute his estate among the children of his nephew, and he directs his lands to be sold for that purpose; but one of his executors has put it out of his power to act by removing out of the state, which is ‘equivalent to a renunciation of his executorship; it is, therefore, indispensable that the qualified executor should exercise the power of selling or the provisions of the will could not be executed. I presented these views of the case to the jury and they found a verdict for the plaintiff.”
    A motion for a new trial was made on the. following grounds:
    1st. That the plaintiff could not prevail; De Tolinaire being an alien.
    2nd. That Patterson had no power to convey; the estate being in trustees under the marriage settlement, or it vested in the cestui que use; that Patterson alone could not convey, the other executor named having never renounced.
    
      Argued 9th March, 1825.
    
      J. B. 'White, for the motion
    The deed of marriage settlement is dated 2nd January, '1776; date of the will, is 3rd January, 1816: The former conveyed ‘to ‘trustees for the use of the marriage of the daughter. The will directs all the estate real and personal, to be sold at the discretion of the executors. The executorshad no power to convey: He had ■but an equitable estate, the fee being in the trustees, under the marriage settlement, and the executor could -not convey unless the other had renounced. Power -to sell, under'the act of 1787, (Pub. Laws, 423,) only relates to. cases where the testator has directed a sale, but. has not said by whom to be made. There, a majority of sucji as qualifymay act.under the statute 21, Hen, 8, c. 4. (PublicLaws, 45.J winery the devise is to executors to sell, those who qualify may convey, thb others refusing. But here the power is joint and must be jointly executed; for the words of the will are, “executors herein after mentioned,” which designates them as persons. (2 Swinb. 715 to 761.J Lands descend to the heirs-, therefore, authorities to sell should be strictly construed, (2 Swinb. 730, ?i.) if a devisb be to A^B. C. to sell and one die, the others ¿annot sell.
    The refusal to serve as executor must be formal-— ( Grimkie Ex. 164.) and must be entered of record in court. {Toller 41-2. 2 Swinb. 865, n. Wentworth Ex. 38. 2 Rob, on Wills, 42.) Renunciation must be'-entered in tho ordi - nary’s office and a verbal one is not sufficient — (Wentworth 38.) The other executor here went away, knowing of his being-appointed, and might come here to-mOrrow and assume the executorship. But this is an equitable estate, notwithstanding statute of uses. Something should be done to transfer the estate. (2 Fonb. 138) He Tolinaire was then an alien; use must be executed. (2 [Fonb. 12.) The former decision was that Patterson could not maintain the action. He referred to cases relied on in 14 Johns, R. 527. and remarked that a naked power does not survive. If any trust to be executed, the power survives. An interest was conveyed; (lb Johns, 346.J an interest coupled with the power. Devise is to sell and to vest proceeds in public stock, and give to aliens, for De Tolinaire is an alien; was once an alien, and something must be done to make him a citizen. Does the mere being here at the declaration pf independence make him a citizen? There are but two ways to create a citizen; by letters patent, or act of parliament. (4 Cranch 321. 316. 97. 1 Munf. 218.) He is not a subject of Great Britain, claiming under treaty. T ime alone cannot make a citizen.
    
      
       See also Zebach vs. Smith, (3 Binn.Rep. 69.)
    
   Nott J.

The court concur to the opinion of the court, below'. — Motion refused.

White, for motion,

contra.  