The Court not being unanimous, delivered their opinionsseriatim.
By the Court.
Lumpkin, J.
delivering the opinion.
But two questions present themselves to our consideration upon this record, and I shall consider them in the order in which they were argued by Counsel.
[1.] The first is, whether the defendant in error, John C-, ^Burch, by virtue of his appointment and qualification as executor of the last will and testament of Wm. Elizabeth Burch, became entitled to represent the estate of Mrs. S. Burch, deceased, of which Mrs. Elizabeth Burch was the sole surviving executrix, at the time of her death ? The general principle was not denied by Counsel for plaintiff in error, but this case was sought to be made an exception, by reason of the fact, that if anything is to be done by the representative of William S. Burch’s estate, it is solely to make the sale and distribution which, by the terms of the will itself, were not to-be made until the death of Mrs. Burch; and consequently, could not, by any possibility, have been made by her as executrix. The argument is, that her executor cannot be subrogated to rights which she, herself, did not have. We have [184] not been able to arrive, at this conclusion. The reason of the-rule is thus given by Blaclcstone: “ Eor the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is, therefore, alloived to transmit that power to another, in whom he has-equal confidence.” This reason applies with as much force-to the case at bar as to any ordinary case. Moreover, this rule has been a settled rule of the Courts for more than five centuries, as appears by a Statute passed in 25 Ed. III. (A. D. 1352,) regulating the duties of such executors. (See 9 Petersdorff, Abr. 301, note 1.) Such cases as the present must have frequently occurred, and yet, we find no such exception made, and nothing analagous thereto, from which to deduce it. (See Wentworth’s Office of Ex’rs, 259 ; Godolphin’s Orphan’s legacy, Part II. Ch. T.; 4 Burn’s Eccl. Law, 224; Wankford vs. Wankford, 1 Salkeld, 309 ; Williams on Ex’rs, Bk. III. Ch. T, p. 207.)
[2.] The other objection was more urgently pressed by the able Counsel for plaintiffs in error; and that is, that by the assent of the executors to the life interest of Mrs. Burch, under her husband’s will, all the title passed out of the estate ;- and hence, that the will was fully executed, and there remains nothing for an executor to do. Waiving the point, whether this is a proper objection, if true, to the present application, as both parties have expressed a desire for the opinion of this Court upon this question, we shall proceed to examine the-will, and see whether there does remain any portion of it unexecuted. The rule that the assent of an executor to the life-estate, enures to the benefit of a vested remainder-man, has been frequently recognized by this Court; and in Foster vs. McGinnis, (4 Ga. 377,) it is very strongly intimated, that the mere fact of a sale being ordered for the purpose of a division, not only will not keep the remainder from vesting, but, in a proper case, the remainder-men, themselves, might make the sale and the division. But is this such a case ? Were the remainders vested at the death of Wm. S, Burch ? Eor if' any one of the several beneficiaries took a contingent remain[185] der, then the law, which will not allow an estate ever to be in abeyance, must keep the title in the estate of Wm. S. Burch,. until the contingency happens. We think it clear that those provisions in the will of William S. Burch, referring to the death of his wife’s sisters, and also to the death of the heirs of William T. Cook, leaving no child or children, look to those contingencies as-arising during the lifetime of his wife, and not during his own life. In fact, upon a careful review of this will, it is evident that the testator did not intend the title to any of his property to pass out of his estate during the lifetime of his wife, except in the event of her marriage. ■ The care with which he distinguishes the use of the words “lend” and “give,” shows that it was no unmeaning distinction with him. His testamentary idea clearly was, that his-wife should have the usufruct of his estate, only the title remaining in his executors; and hence, he speaks of their resuming possession, of its being under their management, direction and control, after her second marriage, of their “ lending” a portion to his sister Betty Cook, after his wife’s death; still keeping the “management, direction and control,” and finally providing for a sale and division. There can be no question that the testator intended this sale to be made by his executors; otherwise, how could they “ lend” a portion of the proceeds of the sale to Betty Cook during her life, and keep the management, direction and control thereof? And if such was the intention of the testator, (upon which point I believe the Court are unanimous,) is the will fully executed until such sale is made ?
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The Court not being unanimous, delivered their opinionsseriatim.
By the Court.
Lumpkin, J.
delivering the opinion.
But two questions present themselves to our consideration upon this record, and I shall consider them in the order in which they were argued by Counsel.
[1.] The first is, whether the defendant in error, John C-, ^Burch, by virtue of his appointment and qualification as executor of the last will and testament of Wm. Elizabeth Burch, became entitled to represent the estate of Mrs. S. Burch, deceased, of which Mrs. Elizabeth Burch was the sole surviving executrix, at the time of her death ? The general principle was not denied by Counsel for plaintiff in error, but this case was sought to be made an exception, by reason of the fact, that if anything is to be done by the representative of William S. Burch’s estate, it is solely to make the sale and distribution which, by the terms of the will itself, were not to-be made until the death of Mrs. Burch; and consequently, could not, by any possibility, have been made by her as executrix. The argument is, that her executor cannot be subrogated to rights which she, herself, did not have. We have [184] not been able to arrive, at this conclusion. The reason of the-rule is thus given by Blaclcstone: “ Eor the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is, therefore, alloived to transmit that power to another, in whom he has-equal confidence.” This reason applies with as much force-to the case at bar as to any ordinary case. Moreover, this rule has been a settled rule of the Courts for more than five centuries, as appears by a Statute passed in 25 Ed. III. (A. D. 1352,) regulating the duties of such executors. (See 9 Petersdorff, Abr. 301, note 1.) Such cases as the present must have frequently occurred, and yet, we find no such exception made, and nothing analagous thereto, from which to deduce it. (See Wentworth’s Office of Ex’rs, 259 ; Godolphin’s Orphan’s legacy, Part II. Ch. T.; 4 Burn’s Eccl. Law, 224; Wankford vs. Wankford, 1 Salkeld, 309 ; Williams on Ex’rs, Bk. III. Ch. T, p. 207.)
[2.] The other objection was more urgently pressed by the able Counsel for plaintiffs in error; and that is, that by the assent of the executors to the life interest of Mrs. Burch, under her husband’s will, all the title passed out of the estate ;- and hence, that the will was fully executed, and there remains nothing for an executor to do. Waiving the point, whether this is a proper objection, if true, to the present application, as both parties have expressed a desire for the opinion of this Court upon this question, we shall proceed to examine the-will, and see whether there does remain any portion of it unexecuted. The rule that the assent of an executor to the life-estate, enures to the benefit of a vested remainder-man, has been frequently recognized by this Court; and in Foster vs. McGinnis, (4 Ga. 377,) it is very strongly intimated, that the mere fact of a sale being ordered for the purpose of a division, not only will not keep the remainder from vesting, but, in a proper case, the remainder-men, themselves, might make the sale and the division. But is this such a case ? Were the remainders vested at the death of Wm. S, Burch ? Eor if' any one of the several beneficiaries took a contingent remain[185] der, then the law, which will not allow an estate ever to be in abeyance, must keep the title in the estate of Wm. S. Burch,. until the contingency happens. We think it clear that those provisions in the will of William S. Burch, referring to the death of his wife’s sisters, and also to the death of the heirs of William T. Cook, leaving no child or children, look to those contingencies as-arising during the lifetime of his wife, and not during his own life. In fact, upon a careful review of this will, it is evident that the testator did not intend the title to any of his property to pass out of his estate during the lifetime of his wife, except in the event of her marriage. ■ The care with which he distinguishes the use of the words “lend” and “give,” shows that it was no unmeaning distinction with him. His testamentary idea clearly was, that his-wife should have the usufruct of his estate, only the title remaining in his executors; and hence, he speaks of their resuming possession, of its being under their management, direction and control, after her second marriage, of their “ lending” a portion to his sister Betty Cook, after his wife’s death; still keeping the “management, direction and control,” and finally providing for a sale and division. There can be no question that the testator intended this sale to be made by his executors; otherwise, how could they “ lend” a portion of the proceeds of the sale to Betty Cook during her life, and keep the management, direction and control thereof? And if such was the intention of the testator, (upon which point I believe the Court are unanimous,) is the will fully executed until such sale is made ?
But it is urged that the remainder-men,, themselves, can make this sale. It is admitted by Counsel, that the remain-. der-men number at least one hundred; that they live in a half dozen different States of the Union — among others, Hlinois and Texas; that they are of various ages, and some of them femes covert; that the interest of some of them would hardly pay their expenses from their homes to the site of this property. Only portion of them are parties to this caveat, [186] and some of them are possiby ignorant even of their having an interest, or of the death of the life-tenant. Is this a ease for an Ordinary to refuse to ajopint a representative to a large estate, consisting chiefly of negroes, and to permit them to remain without a controlling hand; and the estate to be wasted upon the suggestion that all of these remainder-men, if' they could possibly all be assembled, might make this sale and save the commissions of an executor ? If titles can be • made by them, all must join. The absence, minority, coverture, of any one, might be a cloud upon it. In the meanwhile, who has the right to control and manage the estate ? If a trespass is committed, in whom does the right of action lay ? Mark it, the proceeds of the sale, not the property, is given to these legatees — could they bring trover for one or more of the negroes ? Could they sue in ejectment for the land ? These interrogatories, it seems to me, must show the impracticability and the impolicy of such a proceeding. But it is said that the proceeds of the sale being given to those legatees, they may elect to take the corpus, and thus dispense with a sale. That this may be done in some cases, and that a case may be made in which a Court of Equity would order the delivery of the property in specie, is undoubted. In a late case before this Court, (General Bledsoe’s will,) we occupied and enforced this doctrine. But this must be done by a Court of Equity, upon a proper case made. How is the Ordinary informed that the legatees have made such election ? How can he try the issue, whether this is a proper case for the enforcement of this rule ? Suppose a portion of the legatees dissent, is the Ordinary to be governed by the majority, or shall he grant partial.letters to administer and make sale of the portions belonging to the dissenting or non-assenting ■ legatees ? By whom is the division to be made between those ■ legatees, electing to take in special, and those declining to elect ? These and many other difficulties suggest themselves immediately, as insurmountable obstacles to the action of the Ordinary, refusing letters testamentary on this ground. I express no opinion as to the power of a Court of Equity to-[187] meet them. Then, if at all, this election must be made, and it will be for that Court to decide whether the case is one which will authorize this relief.