Lowndes County MsArchives Court.....William White, McDowell, Adm'r Of Lucy Ann Brown V. 1873
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File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 February 12, 2012, 10:30 am

Source: N C Reports
Written: 1873

Thomas D. McDowell, Adm'r cum test. annexo of Lucy Ann Brown, dec'd v. William 
H. White

A direction in a will to divide an estate real and personal, is not a 
direction to sell the real estatte for a division: Hence, the words, "The rest 
and residue of my estate, whether real or personal, I give to be divided 
between the legatees herein mentioned, in proportion," &c. confer no power on 
the administrator cum testamento annexo to sell such real estate for the 
purpose of a division.

Case Agreed submitted to Russell, J., at the Spring Term, 1872, of the 
Superior Court of Bladen County.

The case as disclosed by the record sent to this Court, is as follows:

Lucy Ann died in the State of Mississippi, having first made and published her 
last will and testament, which was admitted to probate in the county of 
Lowndes, in that State, in April, 1871. An exemplification of this will, duly 
authenticated and certified, was exhibited before the Judge of Probate of 
Bladen County, NC, in which the testatrix had property, and was filed and 
recorded as prescribed by law, and the plaintiff appointed administrator with 
the will annexed. 

In her said will, the testatrix, after making sundry other bequests, concludes 
as follows: "The rest and residue of my estate, whether real or personal, I 
give to be divided between the legatees herein named, in proportion to the 
sums herein given." The plaintiff, after qualifying as administrator, and upon 
due notice, sold the real and personal estate of his testatrix, at which sale, 
the defendant purchased a house and lot in Elizabethtown, is said county, for 
$1,003. When payment was demanded in accordance with the terms of the sale, he 
refused to pay his bid, alleging that under the will the plaintiff had no 
power to sell the real estate of the testatrix and make title to the purchaser.

It was submitted, that if his Honor should be of opinion that the will of the 
said Lucy Ann Brown gave the plaintiff, as her administrator with the will 
annexed, power to sell her real estate situated in North Carolina, then 
judgment should be rendered in favor of the plaintiff for the amount of the 
purchase money and for costs; otherwise, judgment should be given in favor of 
the defendant.

His Honor being of opinion, that under the will, the plaintiff was invested 
with power to sell the house and lot as he had done, directed the Clerk to 
enter judgment in his favor, for the amount of the purchase money and for 
costs. From this judgment, the defendant appealed.

No counsel for appellant in this Court
Busbee & Busbee contra

NC Supreme Court Justice Settle, J. - The question in this case is, did the 
administrator with the will annexed have the power to sell land?

The clause of the will under consideration makes all the persons named as 
legatees in the former parts of the will, tenants in common, who, if they see 
proper, can take proceedings and have the land sold for division, and thus 
convey a perfect title.

Judgment reversed, and judgment here that defendant go without day.

Per Curiam
Judgment reversed

Additional Comments:
In the NC Supreme Court January Term 1873

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