Carroll v. Shea

Field, J. The plaintiff in writing agreed to sell, and the defendant to buy, certain real property situated on Bunker Hill Street and Ferrin Street in Boston, of which Edward Carroll died seised. By the agreement, the plaintiff is to give “ a warranty deed conveying a good title.” The question is whether the plaintiff, either in her own right, or as executrix of the will of Edward Carroll, or in both capacities, can convey a good title. [320] It is clear that the will gives her an estate for her life in this real property, and, as executrix, a power to sell and convey the fee. The case differs from such cases as Hale v. Marsh, 100 Mass. 468, Dodge v. Moore, 100 Mass. 335, and Cummings v. Shaw, 108 Mass. 159, mainly in this, that the plaintiff holds her life estate and the power in different capacities. If it is necessary that she execute two deeds, one in her own right of the life estate, and the other as executrix of the remainder in fee, or execute one deed of the whole estate, but in two capacities, the answer shows that the deed or deeds she has tendered are admitted by the defendant to be sufficient to convey a good title, if she can in any manner convey a good title in fee simple. It may be that the power was given to the plaintiff as executrix in order to avoid the question which was decided in Welsh v. Woodbury, 144 Mass. 542; but the fact that the power was given to her as executrix, and, in case she declined or resigned that office, then to an administrator with the will annexed, with the limitation that it should not be exercised by the administrator “ unless by the license and direction of the Probate Court,” and should not continue beyond the life of the wife, does not impair the power she has over the fee while she is executrix. We think she can convey a good title in fee simple. The power given is ample, and it is to be exercised “ in her discretion,” and it is plain that the purchaser is not required to see to the application of the purchase money, because she is authorized to “ expend such portion or all of said proceeds, if necessary, as she in her discretion may deem proper, for her own comfort and support,” etc. Judgment affirmed.