
    Walter White, lessee of Rachel Lloyd against Llewellin Joe Taylor.
    S. C. 2 Dall. 223.
    Testator directs lands to be sold and the monies distributed, but appoints no one to sell; a sale by the surviving executor is good.
    The question came before the court on the following case stated.
    John- Eloyd being seized of the premises in fee, made his willpdated 20th March 1769, (inter alza,) as follows. “My “will is, that all my just debts and funeral charges be paid “and discharged. I give to my wife, all the use, rents and “profits of my estate, both real and personal, during her “widowhood; *in case she should marry the one third [-*403 ‘ ‘ only. Also, after her decease, the estate to be sold, L “and the money arising from the sale thereof to be divided “as follows: 5I. to my daughter Catharine, to be paid to her “as my executors shall see occasion, and the remainder to be “equally divided among the rest of my children, viz. Elizabeth, Sarah, John, Hannah, Rachel and Jehu. It is also “my will that my son Jehu be put apprentice to learn a “a trade. Also, I appoint John.Roberts (miller,) and John ‘ ‘ Robinson, to be the executors of this my last will and testa-brent.”
    John Roberts died. John Robinson, the surviving executor, couve3'ed the premises to the lessor of the plaintiff, (prout deed,) all the heirs being then of full age, and were of full age previous to the death of their mother.
    Previous to this deed, three of the heirs at law, (of whom there then remained six,) conveyed to John Young, under whom the defendant claims, (prout deeds produced.)
    The question submitted to the court was, whether under this statement the plaintiff is entitled to recover? If the court should be of opinion for the plaintiff, then judgment to be entered for the plaintiff, with six pence damages and six pence costs. If for the defendant, judgment to be entered for the defendant.
    Mr. Rawle for the plaintiff.
    Two points may occur in this case; 1st, Whether the testator, having directed his lands to be sold, and not mentioned by whom, his executors might legally sell ? 2d, Whether his surviving executor could sell?
    On the first point, I take it to be settled, that where a testator gives an authority, but gives 110 express direction who are to sell, there the law intends it shall be sold by his executors, either where the lands are to be sold for payment of debts, 2 Eeon. 145, or where the monies arising from the sale are to be distributed among several persons. 1 Cha. Ca. 179. Shep. Touchst. 449, (old edit.) Cites Perk. § 547. Hardr. 419. T. Jon. 25, 26. 8 Vin. 468, pi. 1, 2, 3.
    And on the second point it has been adjudged, that the surviving executor may sell. Dy. 371. b. Sav. 72. The whole doctrine on this subject has been fully considered and weighed in Hargr. Co. Eitt. 113. a. b. 118. b. note (1.)
    But it may be said, that in such cases recurrence is usually had to the Eord Chancellor, who will direct the heir in certain instances to join in the sale, and that this necessarily implies, that without such joinder in conveyance bj'- the heir, the title would be invalid at law. To this I reply, that this practice has been introduced ex majori cautela, the proof of a *4241 being at*tended with more solemnity than that -* of a deed, and the heir has been decreed to join, that the lands might sell at their full value. 3 P. Willms. 93. 2 Vern. 99. 1 Cha. Ca. 262. 1 Atky. 420, 421.
   Per cur. una voce.

The sale by the surviving executor is valid. Eet judgment be entered for the plaintiff.

Mr. Bankson, for the defendant, did not argue the cause.  