Rowan County NcArchives Court.....Marr, Vs. Peay 1811-18
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 8, 2008, 1:00 pm

Source: North Carolina Reports
Written: 1811-18

July Term 1811.

Den on Demise of George W. L. Marr and others v. Thomas Peay and others.

From Rowan.

1. Power of executors to sell lands. Presumed renunciation of an executorship. 
A being seized in fee of lands, and possessed of personal estate, made his 
will, and directed "his executors therein named to pay and discharge all his 
just debts, and to sell and dispose of whatever they might think proper and 
best of his estate to satisfy his debts." He appointed B, C and D executors, 
and died in 1778. B and C qualified, and undertook the execution of the will. 
D never qualified, nor intermeddled with the estate, nor formally renounced 
the executorship. In 1798 B and C sold the lands to pay the debts, D being 
alive and not refusing to join in a deed to the purchaser: Held, that the deed 
of B and C was good to pass the title, they being answerable to creditors for 
the debts, and the testator having left it to the discretion of his executors 
to pay the debts out of any part of his estate they might think proper. The 
power to sell is attached to the executorship, and not to the persons named 
executors.

2. The Court will presume a renunciation after such a lapse of time. A formal 
renunciation in open court is not necessary; it only affords easier proof of 
the fact.

John Hunter, being seized of the lands in question, devised as follows, to 
wit: "I order my executors hereafter named to pay and discharge all my just 
debts, and that they sell and dispose of whatever they think proper and best 
of my estate, to satisfy my said debts." He appointed Alexander Martin, James 
Martin, James Hunter, John Tate and Edward Hunter, executors of his last will, 
which was proved in Guilford County Court, at February Term, 1778, and James 
Martin, James Hunter, John Tate and Edward Hunter qualified as executors. 
Alexander Martin never qualified, nor in any way intermeddled with the estate 
of the testator, nor did he ever formally renounce the executorship. John Tate 
and Edward Hunter having died, James Martin and James Hunter, the surviving 
acting executors, in 1798, for the purpose of raising money to discharge the 
testator's debts, sold the lands in question, and by a deed of bargain and 
sale conveyed them to the lessors of the plaintiff, Alexander Martin being 
then alive and having not refused to join in the conveyance. The question 
submitted to this Court was, Whether, as Alexander Martin had neither formally 
renounced the executorship nor joined nor refused to join in the sale and 
conveyance of the lands, the lessors of the plaintiff were entitled to recover.

By the Court. The lands in question were sold to pay the debts of the 
testator. He did not set apart a particular portion of his estate, for the 
payment of his debts; he has left it to the discretion of his executors to pay 
his debts from the sales of any part of his estate. The executors are to pay 
the debts; creditors look only to such of them as undertake the execution of 
the will, and it seems necessarily to follow that those who qualify and 
undertake the execution of the will shall be competent to do what the will 
directs to be done. The power to sell is attached to the executorship, not to 
the persons named as executors. But were it otherwise, the Court will 
necessarily presume, after such a great lapse of time, that Alexander Martin 
has virtually renounced the executorship. A formal renunciation in open court 
is not indispensable; it only provides an easy method of proving the fact. 
Other evidence may be equally satisfactory; and none could be more so than 
lying by for the space of twenty years, and during that time never 
intermeddling with the estate. Let judgment be entered for the plaintiff.

Cited: Wood v. Spark, 18 N. C., 395.

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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