
    *Geddy and Knox v. Butler and Wife.
    Friday, Nov. 27th, 1812.
    1. Wills — Construction—Power of Executor to Convey-Realty — Statute.—Where a testator, wto empowered liis executors to sell and convey certain real estate, died before the 1st of January, 1787. the construction of the will, as to the power of the executors to convey, is to be governed by the statute of 21st Hen. VJII. c. 4, and not by the act of 1785, c. 61; notwithstanding the conveyance was executed after the 1st of January, 1787.
    2. Executors — Conveyance of Realty — Refusal of Part of Executors to Qualify. — Under the statute of 21 Hen. VIII. c. 4. a conveyance by part of the executors named in a will, (by which the executors therein mentioned are empowered to convey,) is. justified where the others refuse to qualify. And such refusal may be found on proof of declarations in pais, or presumed, from circumstances, without any renunciation of record. But a special verdict, in ejectment, finding that the executors who failed to join in the deed, “'never did take upon themselves the burthen of executing the will, and never did relinquish their right so to do,” when it appears that they were living at the time of the date of the deed, is so defective, that a venire facias de novo should be awarded.
    This was an appeal from a judgment of the district Court of Petersburgh, upon a special verdict in ejectment.
    The jury found, that Robert Newsum was, in the year 1775, lawfully and rightfully seised in fee simple, and possessed of the premises in the declaration mentioned; and that, being so thereof seised and possessed, he departed this life on the first day of January, 1776, after having duly made and published his last will and testament in writing, which, with the probat thereof, they found in hasc verba; that the premises in the declaration mentioned, are a part of the piece of a lot of land in the town of Petersburg, described in the first clause of the said will, whereby the testator directed that his 1 ‘executors hereafter mentioned, do make sale and dispose of the above-mentioned premises, for the best price, or prices, that may be had for the same;” that the feme plaintiff is the daughter and only child of the said testator, to whom, upon his death, and the death of the widow, (which happened immediately afterwards,) the said premises descended lawfully in possession, and who remained possessed thereof until the 30th of December, 1777.
    The persons appointed executors by the will were, Richard Taylor, Rdward Stabler, Prancis Ruffin, and Thomas Barrett, of whom the two last mentioned qualified December 16th, 1776, “liberty being reserved for the other executors to qualify whenever they might think fit.”
    The jury further found, that Thomas Barrett departed *this life in November, 1788; Edward Stabler, some time about the year 1785; Richard Taylpr, some time in the year 1801; and Francis.Ruffin, in the year 1803; that the said Thomas Barrett and Francis Ruffin, on the 31st day of December, 1777, executed a deed for the premises in question, tp Roger Atkinson, by yirtue of which deed, the said Roger ■entered, and was thereof possessed according to law; that Richard Taylor and Edward Stabler, named, as executors in said will, never did take upon themselves the burthen of the execution thereof, and never relinquished their right so to do;” that, on the 27th of December, 1793, the said Roger Atkinson executed a deed to the said Francis Ruffin, for the premises in the declaration mentioned; by virtue of which deed, the said Francis entered, and was thereof possessed according to law; that, on the 28th of March, 1794, the said Francis Ruffin executed a deed for the same premises to Robert Cocke; by virtue of which.deed, the said Robert entered, and was thereof possessed according to law; that the said Robert Cocke, now deceased, was, at the time of the conveyance last mentioned, the husband of the said feme plaintiff; and that, on the 29th of March, 1794, the said Robert Cocke and Patsy, his wife, (the feme plaintiff,) executed a deed for the same premises, to John Baird, jun. under whom the defendants hold; by virtue of which deed, the said John Baird,, jun. entered, and was thereof possessed according to law.
    The several deeds aforesaid,- were founded in hasc verba; all which were duly recorded ; but it was not stated whether there was any privy examination of, and relinquishment of her right to the-land by, the feme plaintiff, to John Baird, jun. The deed from Barrett and Ruffin to Atkinson was from them as executors -of Robert Newsum, reciting, that he, by his will, had appointed them executors (saying nothing about Richard Taylor and Edward Stabler); and had directed them to sell and convey the land in question-; that they had duly qualified, *&c. and, pursuant to, and under the authority to them bequeathed by said last will and testament, had bargained and sold the said land to the said Roger Atkinson, in consideration of the sum of 3S01.
    The deed from Atkinson to Ruffin conveyed the same land to the latter, “as-surviving executor of Robert Newsum, deceased,” for the same consideration of 3S01.; and the deed from Ruffin to Cocke, referring to the preceding conveyances, stated, that doubts had arisen relative to the title under the same; in consequence whereof, Atkinson’s bond for. the purchase money had been given up by the said Ruffin, and the land had been reconveyed to him as surviving executor; and that the said Ruffin, “for, and'in consideration of the premises, and of the sum. -of Ss. good and' lawful money; by the said Cocke to him in hand paid, &c. had bargained and sold, &c. the same land to the said Cocke,” &c.
    The purpose for which the land was directed by the testator to be sold, appeared, by the will itself, to be the payment of his debts.
    The district Court entered judgment for the plaintiffs;. whereupon the defendants appealed.
    George K. Taylor, for the appellants,
    contended, 1. That if the power of the executor, in this case, to convey the land, depended upon the statute 21 Hen. VIII. ch. 4, which was in force in this country at the death of the testator, still the executors who qualified were competent to make the conveyance. By fair construction, those only are executors who take upon them the trust; not he who is named as executor. It is said in Co. Eitt. 112, b. 113, a., that all the executors must join in the sale. But this dictum may be satisfied by all who qualify. Coke admits, that where one dies, the , survivor may act. This shows that they take ratione officii. The same reason applies where one does not qualify. Hargrave’s able note on sect. 169, folio 146, confirms the doctrine for which I contend. He there refers to a *great number of authorities since Eord Coke’s time, who also says, that where the devise is to the executors nominatim, the survivors cannot sell; because, otherwise the words cannot be satisfied. This shows a distinction between a devise to executors generally, and a devise to them generally; but, in the .present case,'the devise is generally, and they do not take nominatim, but ratione officii.
    In Perkins, p.' 238, sect. 54S, the doctrine is laid down, that if one executor refuse to intermeddle, and the- other only qualify, the sale made by him is good. This is an authority in point. The book was published in the reign of Edw. VI., shortly after the statute of wills, and is quoted by Coke himself.
    A neglect to qualify, for a long time, is equivalent to a refusal. The statute 21 Hen. VIII. is a remedial statute, which should be construed equitably: and its fair and equitable exposition is, that he who neglects to qualify, refuses so long as he neglects. Richardson on Wills, p. 332, is to the same effect; that, prima facie, neglect amounts to refusal. Where the executor is summoned to qualify, and makes default, and an administrator qualifies, all the books agree that this is a refusal by the executor. The same reason applies to long neglect: a refusal may be by acts as.well as words..
    So far upon the general question. As to the words of this particular will: Eord Coke says, it is his advice, that the testator direct the sale to be made by those who qualify; in this will such a direction, is evidently implied; for the testator “devises to those of his executors who should undertake the management of his est^e, the sum of fifty pounds, .current money, each, as compensation for their care and trouble in the settlement thereof;” from which, it is plain, that he contemplated the refusal of some, and therefore intended that the powers given, by his will, should be .executed by those who should qualify.
    
      *But, .2. The conveyance in question is good under the act of 1785, c. 61, sect. 42; the date of the deed from Ruffin, the surviving executor, to Coke, being after that act took effect; notwithstanding the death of the testator was before it.
    Hay, contra,
    insisted, 1st. That the sale and conveyance, by Ruffin and Barrett, in 1777, to Roger Atkinson, did not pass the legal title; that the words of this will being, “I desire that my executors, hereafter mentioned, do make sale,” &c. ; the power given was to the executors nomina-tim, and not ratione officii; and that the rule laid down by Coke is not contravened by modern authorities.
    
    3. The voluntary conveyance, in 1793, by Ruffin to Cocke, was not an execution of the authority given by the will, but a fraud on the face of the deed.
    
      
      Executors— Renunciation of Trust — Evidence — Declarations in Pais. — The renunciation of the exec-utorship need not be by matter of record but maybe proved by declarations in pais. or presumed from circumstances. Thornton v. Winston, 4 Leigh 157; Thompsons v. Meek, 7 Leigh 428, 431, both citing the principal case as authority for the proposition. In Burnley v. Duke, 1 Rand. 108, it is decided that a renunciation of the executorship of a will may be presumed from the facts of an executor’s failing to qualify, and joining another who had qualified as administrator in a sale of land directed by the. will to be sold, such joining being not in his character of executor, but as heir of the testator.
      A testator, in the year 1874, having directed that his executors should sell all his real and personal estate for the payment of his debts, and having appointed four executors, three of whom qualified, a sale in 1794, by two of the acting executors, was held valid, and the third executor (as well as the fourth, who never qualified) was presumed to have renounced his right to administer, as at the date of the sale in question. Nelson v. Carrington, 4 Munf. 333. See generally, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
       Revised Code, vol. 1, p. 166, sect. 45.
    
    
      
      Note. See 1 Powell on Devises, from p. 293, to p. 311.
    
   Wednesday, March 17th, 1813, the president pronounced the following opinion of this Court.

“The Court considering that, under the statute of the 21st of Hen. VIII., c. 4, by which the will in question is to be governed, a conveyance by part of the executors named in the will is justified, where the others refuse to take upon themselves the charge or administration thereof; and such refusal, not being found in this case; (and which may be found either from declarations to that effect in pais, or presumed, as in other cases;) but the jury having only found, that Richard Taylor and Edward Stabler never did relinquish their right to take upon themselves the burthen of the execution of the will of Robert Newsum, in the proceedings mentioned; (by which term, relinquishment, the jury, probably, meant a renunciation of record, which is not necessary to justify a deed made by the executors who acted;) the Court is of opinion, that the special verdict, in this case, is too *defective, in this particular, in relation, as well to the deed, from Francis Ruffin and Thomas Barrett to Roger Atkinson, of the 31st of December, 1777, as to that made by Francis Ruffin to Robert Cocke, of the 28th of March, 1794, to justify the Court below in rendering the judgment. ’ ’ Therefore,

Judgment reversed, and venire facias de novo awarded.  