Rowan County NcArchives Court.....Brown, Vs. Beard 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:19 pm

Source: North Carolina Reports
Written: 1811-18

JANUARY TERM, 1812.


PETER BROWN v. SAMUEL BEARD. 

From Rowan.

A, being seized of a house and lot in town, and also of two tracts of land, 
devised that his executors should sell one of the tracts of land and his house 
and lot in town for the purpose of paying his debts; that his widow should 
have the other tract during her life, and at her death that should be sold and 
the money arising therefrom be equally divided among his children then living. 
The executors sold one of the tracts, but not the house and lot; and one of 
them dying, the survivor sold part of the other tract: Held, that this last 
sale was void, because the executors had by the first sale executed the power 
devolved on them by the will. One tract being sold to pay debts, the other was 
to be reserved for the children.

This was an action of trespass quare clausum fregit, to which the defendant 
pleaded "the general issue" and "liberum tenementum." Michael Moor being 
seized of the lands in question, made his will duly executed to pass his real 
estates, wherein he devised as follows, to wit: "I devise that my executors 
may (so soon as they can conveniently and to advantage) sell my dwelling-house 
in town, together with the 170 acres of deeded land adjoining Barbarie's land, 
out of which they must pay off the remainder of my debts, should any remain; 
and any balance that should remain, after paying my debts, I desire the same 
may be disposed of in the best manner, at the discretion of my executors, for 
the advantage of my children. Item: Should it not be in the power of my 
executors to sell the house and land before mentioned, then my desire is that 
they sell the tract of land I bought from Frederick Getzcha, to be employed in 
manner before mentioned; but I should rather wish the first to be sold. Item: 
Whichever of the premises remains unsold, my will is that my wife shall have 
the same during her widowhood. At her marriage or death I devise the same to 
be sold to the best advantage, and the money arising from the sale thereof to 
be equally divided among all my children that shall then be alive." The 
testator appointed Susannah Moor and Gasper Kinder executrix and executor of 
his will, who qualified and undertook its execution. Some time after the death 
of the testator the executors sold the tract of land which the testator 
purchased from Frederick Getzcha; and many years afterwards Susannah Moor, 
then the surviving executrix, sold to Peter Brown, the plaintiff, the land in 
controversy in this case, to wit, twenty-two acres of the Barbarie tract, and 
executed to him a deed. Brown entered and took possession of the land. Some 
time afterwards Susannah Moor, the widow, died, and the children of Michael 
Moor, claiming the land after her death, sold and conveyed the same to Maxwell 
Chambers, under whom the defendant entered and cut down the trees complained 
of by the plaintiff in his declaration. It was submitted to the Court to 
decide whether the deed made by Susannah Moor to the plaintiff passed an 
estate in fee or for life only: if in fee, judgment to be entered for the 
plaintiff; if for life only, judgment to be entered for the defendant.

Taylor, C. J. The widow could convey only a life estate in the land she sold 
to Brown, because she and the other executor had previously executed. The 
power devolved on them by the will of selling one tract. It is true, they did 
not sell the house and land which the testator desired to be sold in the first 
instance; but the direction to that effect is not peremptory, and if they 
found that inconvenient to be done, they were at liberty to sell the land 
bought of Getzcha. But one tract being sold, and it is immaterial which, the 
other ought to have been reserved for the uses of the will. The widow had but 
a life estate in it, and on her death it should have been sold to the best 
advantage for the use of the children. Judgment for the defendant.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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