Hale v. Hale

137 Mass. 168, 1884 Mass. LEXIS 214

• Court: Massachusetts Supreme Judicial Court
• Decided: May 9, 1884
• Status: Published

Opinion

C. Allen, J.

The executors were by implication authorized to make sale of the property, under the direction in the will that it should be sold; they being bound by law, and also being directed by the will, to see to the application of the proceeds of the sale. Lippincott v. Lippincott, 4 C. E. Green, 121. Lewin on Trusts (7th ed.) 423. Perry on Trusts, § 501.

The requirement that the sale should be made within one year was not imperative, but only directory. The executors might, indeed, be responsible for the consequences of a delay; but, on looking through the will, there is nothing to show that their power to sell was to cease with the expiration of one year, in case a sale should not be made earlier. They may well make a sale afterwards, and pass a valid title, without the direction or superintendence of a court of chancery. Pearce v. Gardner, 10 Hare, 287. Cuff v. Hall, 1 Jur. (N. S.) 972. Shatter’s appeal, 43 Penn. St. 83. Lewin on Trusts, 390, 519. Perry on Trusts, §§ 490, 771, 783. 1 Jarm. Wills (5th Am. ed. by Bigelow) 592.

It is the duty of the executors to proceed with the sale as nearly as possible according to the directions of the will. We cannot assume to change the testator’s scheme for the settlement of his estate, by declaring that the sale may be postponed, and the property let to tenants.

Looking at the situation of the property, as shown by the plan, it appears to have been the intention of the testator that the whole of his real estate in Groveland, and also the small piece of land in Boxford, which was near by and used for the purpose of flowing in connection with the mills, should be included in the sale. Decree accordingly.