
    Brock and Others v. Philips.
    April Term, 1795.
    Executors — Authority—Sale of Real Property. — A man devises that so much of his lands should he sold as would he sufficient to pay his debts. To his wife he gives a moiety of his lands remaining after his debts are paid, and the residue of his estate, with the reversion of the land given to his wife, to go to his children. The executor, by selling the reversion of the moiety given to the wife, exceeds his authority, and Equity will set aside the sale upon the suit of the children.
    The case was — John L. Uewis by his will devised, that as much of his land should be sold as would be sufficient to pay his debts, and he empowered his executors thereafter named, to sell and make conveyances for the same. He also devised to his wife one half of his land remaining after his debts paid, and the residue of his estate, and the reversion of the land given to his wife, to go to his children. The appellant Brock and two others were named executors, the former of whom alone qualified. The executor sold a tract of land for payment of the debts, and supposing ,that the amount of the sale would be sufficient for that purpose, he deliveied to the widow a moiety of the remaining land. Afterwards finding it necessary to sell more land for payment of further .debts, he disposed of the reversion of the land allotted to the widow, by public sale, which was purchased by George Stubblefield another of the appellants, and he selling to Beverley Stubblefield the other appellant, a conveyance was made by Brock to B. Stubblefield.
    The prayer of the bill is to set aside the conveyance, and for a division of the land according to the will, which was decreed by the High Court of Chancerjr, from which this appeal was prayed.
    Washington for the appellant.
    There are but two questions, worthy of consideration ; for the charge of fraud in the bill being denied in the answer, and supported only by one deposition without corroborating circumstances, it will not be considered as true. They are 1st, Whether one of the executors alone could sell? 2d, Whether the executor acted properly in selling the reversion?
    It is true, that a power given to two, cannot be executed by one. The distinction is between a power devised to three by name, to be exercised by them in their individual capacities, and one which is given to them in their official capacities. In the former, all must join in executing the power, because a fewer number than those appointed will not answer the description. But in the latter case, if two only qualify, they are still the executors, and answer the description. In this case, the power is given to the executors virtute officii.
    *2d, The widow, was not bound to take a moiety of the remainder under the will. She was entitled to, and might claim a third of the whole. It does not appear to the court, that the part allotted to her was more than a third, and consequently, the executor, who had a right under the will to sell for payment of debts, could not do otherwise than sell the reversion, the widow being lawfully entitled to retain the possession during her life. It does not appear that there was any other land to sell except this reversion.
    Marshall. If I thought there were any doubt respecting the want of authority in the executor to sell the reversion of this land, I should question the right of one executor to sell at all. But considering the other point as being too clear to admit of doubt, I shall confine myself to it.
    The executor was bound to pursue the power delegated to him. The widow, was entitled under the will only to a moiety of the land not disposed of in payment of debts. She did not demand her dower, but accepted of a moiety of the land which remained after the first sale had been made. She cannot therefore claim under, and against the will. The executor, instead of selling the reversion of the moiety allotted to her, should have sold the other moiety, and even if it were necessary to sell this, or a part of it, the absolute right and present interest should have been sold, since the widow was entitled to no part under the will, till after the debts were paid. The consequence of what has happened is, that the children have been ex-tremelj' injured by having their property sold under an incumbrance, and on that account at an under value.
    Washington in reply.
    If the executor ought to have sold other land, it may be a reason to charge him with misconduct, but the purchaser ought not on that account to suffer. An executor by law ought not to sell slaves whilst there is personal estate; but yet if he were to do it, the title of the vendee could not be impeached, any more than if he had purchased from the executor a specific legacy, whilst there were other assets sufficient to pay the debts. Mead v. Cord Orrery &c. 3 Atk. 235.
    
      
      Executors — Sale of Real Property — Caveat Emptor.— The principal case is cited in Deneale v. Morgan, 5 Call 417, as authority for the proposition that a purchaser of lands from an executor, is hound to look for, and to understand the extent of his power, the doctrine caveat emptor strictly applying in such a case. See Snider v. Snider. 3 W. Va. 200.
      Same — Sale of Personal Property. — But in Sale v. Roy, 2 Hen. & M. 78, the principal case is cited for the'proposition that although the principle caveat emptor applies to lands devised to he sold for the payment of debts, it is otherwise as to slaves and personal estate: and a purchaser of slaves sold at public auction by an executor, for the payment of debts, cannot be disturbed. The principal case is cited in Sale v. Roy, 2 Hen. & M. 76. Por a full discussion of this subject, see monographic note on ‘‘Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   LYONS J.

delivered the opinion of the court.

It is unnecessary to decide the first point made in this cause, since the court feel no difficulty in affirming the decree upon the second. There can be no doubt, but that the executor has exceeded his power in selling the reversion of the land in question. The case of a person purchasing slaves, or a specific legacy from wan executor whilst he has other assets to pay debts, is not like the present. The executor by law has a right to the possession of slaves, and of personal estate, and a right to sell them. But he has no right to sell lands, unless under a special authority. A purchaser therefore of land, from an executor, is bound to look for, and to understand the extent of that power,and consequently the principal caveat emptor strictly applies in such a case. It is otherwise as to personal estate. The executor instead of selling the reversion of this land ought to have sold the other moiety which was unincumbered.

Decree affirmed.  