Tippett v. Mize

Citations

• 30 Tex. 361

Syllabus

<p>Sales by an administrator mnst be made in the manner provided by law, and if made at a place and time other than those prescribed by the statute or decree, they are not only irregular, but void.</p> <p>The 64th section of the act relating to the estates of deceased persons reads as follows: “Whenever, in a will, power is given to an executor to sell any property of the testator, no order of the chief justice shall be necessary to authorize the executor to make such sale; and when any particular directions are given by a testator in his will respecting the sale of any property belonging to his estate, the same shall be followed, unless creditors or heirs may thereby be prejudiced in their rights.” (Paschal’s Dig., Art. 1324, Note 496.) But the power here given must be exercised by the executor himself, and cannot be delegated by the administrator with the will annexed.</p> <p>An administrator with the will annexed derives his power to sell property from the general law, and not from the will. (Paschal’s Dig., Art's. 1269, 1274.)</p> <p>Where an administrator with the will annexed, in July, 1863, sold a slave in the manner authorized by the will, but without any decree of the court directing such sale, and the purchaser took the slave into his possession, and held him until freedom was consummated, in May, 1865, it was held, that the title did not pass; that the sale was void; and it having become impossible, by a vis major, to return the negro, the plea of failure of consideration was a good bar to the action.</p>