Mayo v. Merritt

Ames, J. By the terms of the will, the executor is intrusted with a general discretionary power to sell all or any part of the real estate whenever he shall think it “ most for the interest of those concerned.” The final distribution of the property could not well be made until after the decease of the widow, and the testator must be supposed to have considered it possible that it might in the mean time become advisable to make an entire change in the form in which his property had been invested. He therefore selects the executor as a person in whose judgment he had confidence, and he imposes upon him the trust and respon sibility of settling that question whenever it should arise. The beneficiaries under the will hold whatever interest in real estate it bestows upon them, subject to the general power on the part of the executor to change the real estate into personal, whenever in the execution of his trust he may think it expedient so to do. Russell v. Lewis, 2 Pick. 508. Earle v. Washburn, 7 Allen, 95. The widow has no title which she can convey to a third person so as to prevent any deed which the executor may lawfully make in execution of his trust from going into full effect. Whatever deed she can make can be immediately defeated and rendered ineffectual by the deed which he may make. Her right to the use and income of the real estate must come to an immediate end, and be transformed into a share in the income of a different form of investment, whenever he shall see fit to execute the power of sale which is intrusted to him for the benefit of all concerned. It is plain that her creditors can take from her no larger title than she has to give. Staples v. Brown, 13 Allen, 64. We do not think that the fact that she personally occupied 507 fehe real estate was intended by the will to operate as a restraint upon the exercise of the power of sale, or that her election so to occupy the estate was necessarily irrevocable. The respondent holds by virtue of a deed which the executor had a right to make, and has thereby acquired a title superior to any which the w-dow could convey, or which her creditors could acquire by legal process against her. As these considerations dispose of the case, it has not been considered necessary to discuss the question as to the effect of the mortgage given by the testator in his lifetime, and now held by the respondent. Petition dismissed.