Swan v. Covert

22 A. 28, 138 Pa. 306, 1890 Pa. LEXIS 1273

• Court: Supreme Court of Pennsylvania
• Decided: November 10, 1890
• Docket: No. 220
• Status: Published

Opinion

Peb, Curiam :

This was a case stated, and the only question presented was whether, under the will of Robert Swan, deceased, the executors have the power to sell the real estate in controversy. Of this we have no doubt.

The tenth paragraph of the will provides that “ if any interest that I may have in the Green Tree farm remains unsold at my death, I hereby authorize and empower my executor to join in the sale of such land unsold, giving my said executor full power and authority to join in making deed or deeds for the same.” At the time the will was made, the testator held ■the land in question as tenant in common with three other persons. Prior to his death his share of the land was set apart to him in severalty by proceedings in partition. It was this real estate which was referred to in the tenth paragraph of the will; and, as the language used was merely “ to join in making a deed or deeds for the same,” it was contended the testator did not intend to give his executor the power to sell land belonging to him in severalty. It was natural to use this language when the will was made, as the testator at that time held an ■undivided interest. But he evidently intended that whatever interest he held should be sold, for he expressly says: “ If any -interest that I may have in the Green Tree farm remains unsold at my death,” etc. This shows plainly that the testator contemplated that his interest in the farm might be different at the time of his death, from what it was when he made his will. It might be enlarged or diminished. Hence he gives his executor the power to sell “ any interest; ” and we do not ■regard the subsequent language, referred to, as in any way impairing or restricting the power of sale. The learned judge below was entirely right in entering judgment for the plaintiff in the case stated, and it is accordingly

Affirmed.