Weed v. Donovan

Gray, C. J. It is unnecessary to consider by whom the power of sale conferred by the testator upon the executors and trustee named in the will should properly have been executed after the former had declined to act as executors, and the latter had declined to act as trustee; for the persons so named as executors, the administrators with the will annexed, and the trustee appointed by the Probate Court in the place of the one who had declined the trust, all joined in conveying the land in question to the plaintiff, and the heirs at law of the testator at the same time released their interest therein. The only objections raised to the efficacy of those deeds to pass a complete title are that the grantors had not previously been appointed and given bond in such a manner as to authorize them to execute the power of sale conferred by the will. Such informalities, if any, are cured by the resolve of the Legislature of 1873, c. 9. Wilkinson v. Leland, 2 Pet. 627, and 10 Pet. 294. Kearney v. Taylor, 15 How. 494. Sohier v. Massachusetts General Hospital, 3 Cush. 483. Wildes v. Vanvoorhis, 15 Gray, 139. Denny v. Mattoon, 2 Allen, 361, 382, 383. The parties having agreed that this resolve, though passed since the bill was filed, may be considered as if brought before the court by supplemental bill, and it not being suggested that time was or is of the essence of the agreement between the plaintiff and the defendant, the plaintiff, being now able to make a complete title, is entitled to a decree for specific performance, Dresel v. Jordan, 104 Mass. 407. Peeree for the plaintiff, without costs.