Nicoll v. Scott

Citations

• 99 Ill. 529
• 1881 Ill. LEXIS 208

Syllabus

<p>1. Administrator with will annexed — has no power to sell land under power in will. An administrator with the will annexed has no power, without the aid of a court, to sell lands devised to an executor to be sold, or directed to be sold by the executor. Such administrator can not execute a power of sale of land given the executor in the will.</p> <p>2. The statute authorizing the appointment of an administrator de bonis non on the death of the sole or surviving executor, etc., if there “is anything remaining to be performed in the execution of the will,” does not authorize such administrator to execute a power of sale in the will. The words, “anything remaining to be performed in the execution of the will,” mean only something to be performed as executor, and belonging to the office proper of executor, and do not extend to anything to be done as agent or trustee, under a power to sell land.</p> <p>3. Devise — of remainder, whether vested or contingent. Where a testator, after devising his lands to his wife for her life, devised the same lands to his children and some grandchildren, by name, to be equally divided between them at the decease of his widow, and then declared it his will that the farm and improvements be sold after the death of his wife, “so that the proceeds” should “ be equally divided among the survivors named in the will,” and that his son W. J. receive $100 out of his son J.’s share, for money advanced to X: Held, that the children and grandchildren took a vested estate in remainder, to take effect on the termination of the life estate of the widow, and that the word “ survivors,” in such case referred to the testator’s death, and not to the time of the death of his widow.</p> <p>4. Words of survivorship will not be referred to the period of distribution, where there is an antecedent gift to devisees named, the enjoyment of which may be regarded as postponed. It makes a difference where all there is of the gift is in the direction to pay or distr