In the trial of this cause, Kinsey, C. J., held, with the concurrence of Chetwood, J., that where testator directed his lands to be sold by his executors, this was a personal trust; and, as the executors renounced, there was no one by whom the duty could be fulfilled. A sale by administrators oum testamento annexo, was altogether unauthorized and void.
2d. That, as the deed under which the lessor of the plaintiff claimed, was expressly recognized in that which is the foundation of the defendant’s title, the defendant is estopped from questioning or gainsaying it. See Embree v. Ellis, 2 Johns. 119.
After the jury were charged by the court, the plaintiff suffered a voluntary non-suit.