Den on Demise of Marr v. Peay

6 N.C. 84

• Court: Supreme Court of North Carolina
• Decided: July 5, 1811
• Status: Published

Opinion

By the Court.

The lands in question were sold to pay the debts of the testator. He did not set apart a particular portion of his estate for the payment of his debts : he has left it to the discretion of his executors to pay his debts from the sales of any part of his estate. The executors are to pay the debts; creditors look only to such of them as undertake the execution of the will $ and it seems necessarily to follow, that those who qualify and undertake the execution of the vvill, shall be competent to do what the will directs to be done. The power to sell is attached to the executorship, not to the persons named as executors. But were it otherwise, the Court will necessarily presume, after such a great lapse of time, that Alexander Martin has virtually renounced the executorship. A formal renunciation in open Court is not indispensible; it only provides an easy method of proving the fact. Other evidence may be equally satisfactory ; and none could be more so, than lying by for the space of ikventy years, and during that time never intermeddling with the estate. Bet judgment be entered for the Plaintiff. «