
    M. E. Eskridge et al. v. R. S. Patterson.
    No. 3232.
    Joint Independent Executors—One Acting.—In 1851 the ancestor of plaintifís died, leaving a will appointing two executors with power to act independently of the Probate Court. In 1853 one of the executors intermarried with the widow, mother of plaintiffs. The other executor then turned over the business of the estate to his coexecutor, who in 1862 sold the land in controversy for the purpose of paying a debt of the-estate secured by a mortgage upon other property. The heirs subsequent!)' investigated the facts and concluded the sale was legal. The purchaser entered into and held possession. Suit was brought against him by the married daughters of the testator. There was no testimony of an express renunciation by the other executor, though he had ceased to act. Held, that under the circumstances a finding by the court that the sale was legal should be sustained, the lapse of time between the sale and suit tending strongly to prove the renunciation of the trust by the other executor, upon which fact depended the power of the acting executor to make the sale.
    Appeal from Hunt. Tried below before Hon. E. VV.’ Terhune.
    The opinion states the case.
    
      Arnold & Thompson, and Grubbs é Heffner, for appellants.—
    1. Trustees are held to a strict compliance with the terms and conditions of the instrument conferring the trust, and a material variance or deviation from the same in the execution of the power avoids the act of such trustee. Rev. Stats., art. 1937; O. & W. Dig.,.arts. 705, 714, 882; Pasch. Dig., arts. 1269, 1274, 1324, and notes 466, 469; Langley v. Harris, 23 Texas, 565, and authorities; Tippett v. Mize, 30 Texas, 362, and authorities; Hart v. Rust, 46 Texas, 556, and authorities; McLane v. Belvin, 47 Texas, 493; Wright v. Dunn, 73 Texas, 293;. 2 Washb. Real Prop., 4 ed., pp. 508-510 (secs. 16,17), 521 (sec. 8), 655 (sec. 3), 660-665 (secs. 20-26 and notes), 656 (sec. 8).
    2. The same rule-does not apply in cases where there are two or more executors administering an estate under the supervision of the Probate Court with reference to the conveyance of land by one of the executors with the approval of the court, as in cases where the estate being administered is withdrawn from the control and supervision of the Probate Court; and while the act of one of several ooexecutors with the approval of the court would pass title, the same does not hold good where they act independently.
    3. ‘ That the execution of the power by one of several coexecutors is defective there can be no question. If it can be upheld at all as a conveyance of the land, it can only be done through the equity j urisdiction of the court.
    
      Perkins, Gilbert & Perkins, for appellee.—
    1. When one of two independent executors, after qualifying and acting for a short time, ceases and declines to further act, the remaining executor may be treated as sole executor of the will, and his acts will bind the estate. Bennett v. Kiber, 76 Texas, 385; Anderson v. Stockdale, 62 Texas, 54; Johnson v. Bowden, 43 Texas, 670.
    2. When a power of sale of land is given in a will to several executors, and the power is simply incident to the discharge of the duties of the office, .the power niay be executed by the remaining executor if one dies or resigns. Zebach v. Smith, 5 Am. Dec., 352; Crosw. on Exrs. and Admrs., secs. 475, 587.
    3. A formal renunciation ■ by one executor is not necessary. Other evidence may be equally satisfactory, and none could be more so than lying by for a number of years and not intermeddling with the estate. Marr v. Peay, 5 Am. Dec., 521; Nelson v. Carrington, 6 Am. Dec., 522.
   GAINES, Associate Justice.

—-The appellants, Mrs. Eskridge and .Mrs. Brown, joined by their husbands, brought this suit in the court below to recover a tract of land patented to one B. W. Smith. They ■claimed as heirs of the patentee.

The defendant, who' is appellee here, claimed under a conveyance to Mm of the land by one B. E. Wynne as executor of the will of Smith.

The court below found that Smith died in 1851, having made his will, in which Bennett Smith and B. E. Wynne were named as executors, and were authorized to administer his estate free from the control of the County Court. The will was probated, and both executors qualified and entered upon the execution of the trust.

In 1853 Wynne married the widow of his testator, and thereupon Smith turned over the control of the property of the estate and ceased to act as ■executor.

In 1862 Wynne, as executor, sold defendant the land in controversy and executed to him a deed to the same, but in this deed Bennett Smith did-not join. The land was sold to pay a debt against the estate of the testator, which was secured by a mortgage upon other property. The defendant immediately went into possession, and has ever since actually occupied the land as his own, using and cultivating it, and paying taxes thereon.

This suit was not brought until December, 1889. The court below concluded that Smith at the time of the sale had ceased to act as executor, and therefore held as a matter of law that the sale and conveyance made by Wynne, the other executor, conveyed, the title to the land. If . this conclusion be correct it is decisive of the case, and it is unnecessary to pass upon any other question raised by the assignments of error.

It is settled in this court that a conveyance by one of two executors under a will which authorizes them to administer the trust free from the control of the Probate Court, while both are acting, is invalid. Hart v. Bust, 46 ,Texas, 556. On the other hand, it is held that when one of two executors of an independent will refuses to qualify or to act, the other has power to convey the property of the estate for the purpose of paying debts, and in accordance with the powers granted in the will. Bennett v. Kiber, 76 Texas, 385, and cases cited. In the case last cited the executor who failed to join in the conveyance had expressly declared his intention no longer to act as executor of the will. This is not quite a parallel case. The direct testimony fails to show any express renu nciation of the trust by Smith. It probably justified the court below in concluding in effect that he had not merely failed to act as executor, but had purposely ceased to act. But this is a very old transaction. Twenty-six years had elapsed from the date of the conveyance- at the time the suit was brought.

When the defendant bought the land he was told that Smith had ceased to act as executor. Twenty years before this litigation arose, he went to Rusk County, where the estate had been administered, and where it seems heirs and devisees resided, and with the sons of the testator and the husbands of his daughters, the real plaintiffs in this action, inquired into the title to the land and examined the will, and it was agreed between them that the sale was valid. This, of course, estops no one. But it is a circumstance tending very strongly to establish the conclusion that the fact existed which authorized Wynne to sell and convey the land as the sole acting executor. The testimony of Bennett Smith was introduced upon the trial, and it fails to show any distinct act of renunciation. He does testify, however, in effect that he relinquished the management of the estate to his coexecutor upon the marriage of the latter with the widow of his testator, and that if subsequent to that time he ever did any act as-executor he did not recollect it. He was eighty-three years old whqn his testimony was taken.

If this were a recent transaction our conclusion would probably be different. But such a long possession and enjoyment of property by one claiming it as his own—the parties adversely interested being cognizant at the same time of the facts under which his claim accrued—creates a strong presumption that his possession had a legal origin, and in the absence of preponderating evidence tending to a contrary conclusion, should be deemed decisive in favor of the validity of his title. In accordance with this principle the Supreme Courts of two States have held that after long possession by one holding under a conveyance by one executor the renunciation at the date of the deed by a coexecutor will be presumed. Marr v. Peay, 2 Murph. (N. C.), 84; Nelson v. Carrington, 4 Mumf. (Va.), 332.

We conclude that under the 'circumstances Bennett Smith should be held to have virtually renounced his executorship, and that the sale and conveyance by Wynne passed the title of the land in controversy to the defendant.

The judgment is correct, and it is affirmed.

Affirmed.

Delivered November 11, 1890.  