Wright, Ck. J.
Tke record in tkis case is in suck a condition tkat it is at least questionable wketker any of tke points made by appellants are properly before ns. Without, however, thus disposing .of tke case, we state very briefly tke law applicable to tke questions made.
1. Partitions: parties. I. When a defendant, in an action of tkis character, “ disclaims and disavows any right, title, or interest in or to tke premises ” claimed by plaintiff, at tke time tke action was brought or afterwards, and does not appear to be in possession or doing any. act inconsistent with the disclaimer, be is entitled to be dismissed with kis costs. Plaintiff is not entitled to recover against one having no interest in, and making no claim to, tke property.
2. Executors: when one may act. II. Tke statute of 1843, page 674, ck. 162, provided tkat unmarried woman who is executrix, either a^one) or jointly with another person, shall marry, her husband shall not be executor in her right, but tke marriage shall operate as an extinguishment of her authority as executrix, and tke other executor, if there is any, may proceed in discharging tke trust as if she were dead; and if there is no other executor, administration with tke will annexed may be granted of tke estate not already administrated.” Enoch Wade made kis wife Catherine, and Samuel Leibriclc, executors of kis last will and testament. By tke fourth clause of tkis will it was provided, tkat if tke widow married, a certain parcel of real estate (known as tke homestead tract) should “ be sold and conveyed by tke executors, in likemanner, &c.,” and proceeds applied, &e. Tke widow did marry. Leibriclc, as executor, sold said homestead tract; and under tkis sale a portion of defendants assert their title. Held, tkat under tkis statute tke (so to speak) surviving executor had tke power to make tke sale, and tkat it was not necessary to have an administrator, with tke will annexed, appointed, in order to carry out tke directions of tke testator. Tke will does-[107]*107not contemplate in words, that tbe widow .is to continue in tbe discharge of ber trust, after tbe second marriage. Tbe law declares tbe consequence of sucb marriage, and we are to presume that tbe testator acted with full knowledge that sucb was tbe law.
3. Will: sale of real estate. III. Tbe clause of tbe will under consideration made tbe sale of tbe property dependent on tbe marriage ... ... ° ot the widow, without reference to tbe condition of tbe assets of tbe estate. Whether the executor, therefore, made a proper showing of tbe debts of tbe estate; whether tbe demands of creditors required tbe disposition of tbe property, or whether tbe executor acted in good or bad faith in bis management of the affairs committed to bis bands (no complicity being pretended so far as relates to defendants) is a matter of no kind of importance.
Affirmed.
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