Philadelphia Trust etc., Co. v. Lippincott

106 Pa. 295, 1884 Pa. LEXIS 190

• Court: Supreme Court of Pennsylvania
• Decided: April 21, 1884
• Docket: No. 228
• Status: Published

Opinion

Chief Justice Mercur

delivered the opinion of the court,

We concur in opinion with the court below, that the sole surviving executor has lawful power and authority to convey title to said premises. When a devise of real estate is made to executors for the purpose of sale or otherwise, and in general terms they are authorized to sell the same, the Act of 24th February, 1834, in clear and explicit language, gives power to the survivor or survivors to execute that power as fully as all of them might have done, when the testator has not directed otherwise. The will of James Dundas contains no language of a special character sufficient to indicate an intention to restrict the right to convey to all of his executors, nor to prevent the sole surviving executor from executing the power, in pursuance of the Act of 1834. To hold lie cannot so do, would defeat the main purpose and object of the Act. While the Act of 1849 does authorize the Orphans’ Court of Philadelphia, when the will has there been admitted to probate, on application of a party in interest, with the consent of the continuing executor, to appoint a trustee or trustees, in the place of those dying or ceasing to act, with the same power as those in whose stead they were appointed, yet this action is not essentially necessary to a proper exercise of the power given to the executors by the testator. Unless such appointment be actually made, the surviving executor may exercise the whole power under the Act of 1884. It follows the court correctly entered judgment in favor of the plaintiffs below on the case stated.

Judgment affirmed.