majority"> OoNNOR, J.

In Speed v. Perry, 167 N. C., 122, 83 S. E., 176, which was an action to set aside certain deeds described in the complaint on the ground, among others, that the grantor in said deeds was without sufficient mental capacity to execute the same, it is said:

“There is another question in this case; the plaintiffs have shown no right to bring this suit. They have no cause of action. The real estate did not vest in them. This Court held, in Floyd v. Herring, 64 N. C., 409, following Ferebee v. Procter, 19 N. C., 439, that 'a personal representative has no control of the freehold estate of the deceased, unless it vested in him by a will, or where there is a deficiency of personal property and he obtains a license to sell real estate for the payment of debts. The control derived from a will may be either a naked power of sale or a power coupled with an interest. The heir of the testator is not divested of the estate which the law casts upon him by any power or trust until it is executed.’

“It is admitted that Mr. Davis’ estate is solvent, he having had valuable property not encumbered by any debt. This being so, the executors cannot even sell to pay debts, for there are none. We do not know what disposition is made of the estate in the will, and unless they have acquired a right under it to bring this action, they are without standing in the court.”

The plaintiff has acquired no right under the will of D. A. Abernethy, deceased, to bring this action. The testator devised all his real estate, including the land conveyed by the deed of trust, to the devisees named in the will. The direction in the will that the executor named therein divide all his real estate among the devisees in equal shares does not confer upon the plaintiff any interest in the land conveyed by the deed of trust. He therefore has no cause of action with respect to the real estate of the deceased by reason of the will. See Barbee v. Cannady, 191 N. C., 529, 132 S. E., 572.

It is not alleged in the complaint in this action, nor was it made to appear at the hearing, that the estate of D. A. Abernethy, deceased, is insolvent. Even if it had been so alleged, or if it had been made so to appear, the plaintiff was not entitled to an order restraining the sale of the land described in the deed of trust by the defendant. See Miller v. *608 Shore, 206 N. C., 732, 175 S. E., 133. In that case it is held that an executor is not entitled to an order restraining the sale of land owned bj his testator at his death, under a valid deed of trust, which was executed by his testator, although the executor had obtained an order for the sale of the lands of his testator to make assets.

There was error in the refusal of defendant’s motion that the action be dismissed. The order continuing the temporary restraining order to the final hearing is

Reversed.

Citation profile

How this case has been treated — in progress