
    
      Debow v. Hodge.
    
    In the year 1783, John Debow, being seized of the tract of land described in the plaintiff’s declaration, departed this life, having previously published, in writing, his last will and testament, which was admitted to probate after his death, and a copy thereof is sent up as a part of this case. His widow, Lucy Debow, qualified as executrix of the said last will and testament: Jacob Lake, appointed by the testator as one of his executors, never qualified as such, nor did he ever intermeddle with the estate of his testator, until after the intermarriage of the executrix, Lucy Debow, with one Robert Scoby; when the said Jacob Lake made sale of the said tract of land to George Hodge, the father of the defendant, and executed to him the deed of bargain and sale, a copy of which is sent up as a part of this case. Lucy, the executrix of John Debow, deceased, was then alive and did not refuse to execute said deed—the question submitted to the Supreme Court, is, “Whether the deed made by Jacob Lake to George Hodge, is good and valid, in law, to pass the fee-simple in the tract of land aforesaid, and bar the right of entry of the lessor of the plaintiff, who is the heir at law of John Debow, dec. If the Supreme Court be of opinion that the said deed is good and valid in law for the purpose aforesaid, judgment is to be entered for the defendant—if not, judgment to be entered for the plaintiff.
   Hall, J.

delivered the opinion of the Court.

In this case, the testator gives an authority to his executors to sell the land in dispute, and it is of no importance to consider whether that authority is given to them in the character of trustees or of executors; because, although in the first case the authority is annexed to the persons of the trustees, and if one dies before it is executed, it is gone, and the survivor cannot execute it; and in the latter case, the surviving executors may execute such trust. Yet it is indispensible that all the acting executors living at the time should join in such execution. In the present case, the deed was executed only by one of the executors, the other having qualified and being alive at that time. Nor can the defendant derive any aid from the statute of 21st Hen. viii. ch. 4; that statute only provides for the case where one executor refuses to intermeddle with the execution of the will, by enabling the other executors, who take upon themselves the burden of the executorship, to execute such authority by selling the land and making valid all sales by them so made. We therefore think judgment should be given for the plaintiff.  