
    Urban et ux. v. Hopkins et al.
    
    1. Partition' parties. Where a defendant in an action of partition “ disclaims and disavows any right, title or interest in and to the premises claimed by the plaintiff at the time the action was brought or afterwards, and he is not in possession, or doing any act inconsistent with the disclaimer, he is entitled to be dismissed with his costs.
    2. Executors! WHEN-ONE MAY ACT. Under the Revised Statutes of 1843, chap. 162, page 674, where the widow was one of two joint executors of the estate of her former husband, upon her marriage with another her power as executor was extinguished, and it was competent for the remaining executor to proceed to act without the appointment of another executor to succeed the widow.
    3. "Will: sale op real estate. When the testator by his will directs the sale of real estate upon the marriage of Ms widow, without reference to the condition of the assets of the estate, a showing of an insufficiency of assets to pay debts is not necessary to the validity of a sale upon the ocsurrence of the contingency named in the will.
    
      Appeal from Des Moines District Court.
    
    Tuesday, October 11.
    Partition. Plaintiffs claimed a portion of tbe real estate in controversy, as beirs of Enoch Wade, deceased. Part of tbe defendants claim title under a sale made by one of tbe executors of said estate, and tbe others enter a disclaimer. Plaintiffs appeal.
    
      Tracy & Newman for tbe appellants.
    
      J. C. & B. J. Hall for tbe appellees.
   Wright, Ck. J.

Tke record in tkis case is in suck a condition tkat it is at least questionable wketker any of tke points made by appellants are properly before ns. Without, however, thus disposing .of tke case, we state very briefly tke law applicable to tke questions made.

I. When a defendant, in an action of tkis character, “ disclaims and disavows any right, title, or interest in or to tke premises ” claimed by plaintiff, at tke time tke action was brought or afterwards, and does not appear to be in possession or doing any. act inconsistent with the disclaimer, be is entitled to be dismissed with kis costs. Plaintiff is not entitled to recover against one having no interest in, and making no claim to, tke property.

II. Tke statute of 1843, page 674, ck. 162, provided tkat unmarried woman who is executrix, either a^one) or jointly with another person, shall marry, her husband shall not be executor in her right, but tke marriage shall operate as an extinguishment of her authority as executrix, and tke other executor, if there is any, may proceed in discharging tke trust as if she were dead; and if there is no other executor, administration with tke will annexed may be granted of tke estate not already administrated.” Enoch Wade made kis wife Catherine, and Samuel Leibriclc, executors of kis last will and testament. By tke fourth clause of tkis will it was provided, tkat if tke widow married, a certain parcel of real estate (known as tke homestead tract) should “ be sold and conveyed by tke executors, in likemanner, &c.,” and proceeds applied, &e. Tke widow did marry. Leibriclc, as executor, sold said homestead tract; and under tkis sale a portion of defendants assert their title. Held, tkat under tkis statute tke (so to speak) surviving executor had tke power to make tke sale, and tkat it was not necessary to have an administrator, with tke will annexed, appointed, in order to carry out tke directions of tke testator. Tke will does-not contemplate in words, that tbe widow .is to continue in tbe discharge of ber trust, after tbe second marriage. Tbe law declares tbe consequence of sucb marriage, and we are to presume that tbe testator acted with full knowledge that sucb was tbe law.

III. Tbe clause of tbe will under consideration made tbe sale of tbe property dependent on tbe marriage ... ... ° ot the widow, without reference to tbe condition of tbe assets of tbe estate. Whether the executor, therefore, made a proper showing of tbe debts of tbe estate; whether tbe demands of creditors required tbe disposition of tbe property, or whether tbe executor acted in good or bad faith in bis management of the affairs committed to bis bands (no complicity being pretended so far as relates to defendants) is a matter of no kind of importance.

Affirmed.  