McDowell v. Gray

29 Pa. 211

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1857
• Status: Published

Opinion

The opinion of the court was delivered by

Woodward, J.

Whether the authority to the executors to sell the testator’s real estate, as expressed in his will, be regarded as mandatory or discretionary, we think it was exercisable by the acting executrix alone, after the renunciation of her co-executor. In other words, we hold that the Act of Assembly of 12th March, 1800, embraces the case of a distinct grant of authority to sell, even though it be dependent for its exercise upon the discretion of the executor.

It would be an unnatural construction of an enabling and remedial statute, to hold that it conferred powers on one of several executors in whom the testator had manifested no special confidence, which it withheld from the survivor of those in whose discretion he was willing to confide. The reasons for the enactment as set forth in the preamble — the comprehensive terms employed by the legislature — and the understanding and construction of the profession for more than half a century, forbid such a reading of it.

The learned judge expounded the statute correctly, and fortified his conclusions so well, that we can do no better than affirm his judgment for the reasons he rendered for entering it.

Judgment affirmed.