but it is otherwise if the estate is by statute made liable for such taxes.86

§ 1476. Executor by Provisions in Will May Be Vested With Power to Sell Realty: Power May Be Implied.

Neither an executor nor administrator has any inherent power or authority merely by virtue of his appointment to sell the real property of the estate. The statutes of the various jurisdictions usually provide for the sale of real property by the personal representative for the purpose of paying the debts of the decedent, such statutes requiring a petition and a showing of the circumstances prescribed by law before an order authorizing the representative to sell will be made.87 A testator, however, may by the provisions in his will confer the power to sell the real property of the estate.88 This power may be granted in express terms or may arise by implication. Where the will directs a sale to be made without designating the donee of the power, if the proceeds of the sale either according to the provisions of the will or under the rules of law are to be distributed by the executor, then by necessary implication the executor is invested with the power of sale in the absence of any contrary intention appearing in another portion of the will.89 If the will directs a sale

86 Dillard's Admr. v. Dillard, 77 Va. 820.

87 See § 1473.

88 As to executor being given powers over realty by directions in the will, see § 1469.

As to equitable conversion of realty into personalty by direc tions as to sale, see §§ 1470, 1471.

Powers in trust do not devolve to the administrator with the will annexed, see § 1241.

As to the right of an administrator with the will annexed to sell property directed by the will to be sold, see §§ 1242-1245.

89 Newton v. Bennet, 1 Bro. C. C. 135; Blount v. Moore, 54 Ala. 360; Lash v. Lash, 209 Ill. 595, 70 N. E. 1049; Smith v. Courtnay's Exrs., 27 Ky. Law Rep. 642, 85 S. W. 1101; Martin v. Spurrier, 23 Ohio Cir. Ct. 110; Bedford v. Bedford, 110 Tenn. 204, 75 S. W. 1017;

of real estate for the payment of debts or for the distribution of the proceeds among legatees, since the proceeds of the sale must pass through the hands of the executor, a power of sale is necessarily vested in him although the will does not expressly provide that the power of sale be exercised by him."

It is not necessary that technical or express words be employed in a will in order to confer upon an executor the power to sell real property belonging to the estate. If the intention is apparent, such power will be implied, and it may be inferred from the general tenor of the instrument or from the fact that the executor is empowered and directed to do certain things of which a sale of the property is necessarily a condition precedent.o1

1

But if the testator's intention to confer the power of sale or the necessity of such a power is not clear, the courts will not place a strained construction upon the testator's language merely that such a power may be implied."2

§ 1477. Power to Mortgage Not Generally Implied Because Power to Sell Is Granted.

Although the will of the decedent may give the executor therein named the power to sell both the real and personal property of the estate at either public or private sale, this does not confer upon him the power to mortgage the property; nor is such a power given by a provision in the will that the executor shall, in and about the entire management and control of the property, have full power to do the same as the testator would if living.94

Hussey, 41 Me. 495; McGuire v.
Gallagher, 99 Me. 334, 59 Atl. 445.

92 First Baptist Church of Jacksonville v. American Board of Commissioners, 66 Fla. 441, Ann. Cas. 1916D, 404, 63 So. 826.

93 Smith v. Hutchinson, 108 Ill. 662; Hoyt v. Jaques, 129 Mass. 286; Parkhurst v. Trumbull, 130 Mich. 408, 90 N. W. 25; Ferry v. Laible, 31 N. J. Eq. 566; Moran v. James, 21 App. Div. 183, 47 N. Y. Supp. 486; Columbia Ave. Savings Fund etc. Co. v. Lewis, 190 Pa. St. 558, 42 Atl. 1094; Willis v. Smith, 66 Tex. 31, 17 S. W. 247.

94 Hannah v. Carnahan, 65 Mich. 601, 32 N. W. 835; Price v. Courtney, 87 Mo. 387, 56 Am. Rep. 453.

A power to mortgage, however, may be implied from the terms of the will where it would not only better effectuate the intention of the testator, but also would be the more reasonable proceeding under the circumstances. Thus if the real property of the estate comprises a large body of land which could only be disposed of to advantage as a whole and would be greatly depreciated in value by disposing of any portion of it, and where by reason of the character and value of the property at purchaser could be secured only with great difficulty, a general power to sell the same either at public auction or private sale for the purpose of paying the debts of the estate may by implication give the executor power to mortgage the property to raise money for that purpose after the personalty has been exhausted.95 And other portions of the will may have a bearing upon a power given to an executor to sell property. Where the executor is directed to hold the property and manage the same, to collect the rents and profits thereof, to make improvements and to carry on the business of the testator, a power to mortgage may be implied from a provision giving the executor a general power to sell and dispose of any or all of the property as may be deemed most advisable.96

The power to mortgage will not, as a general rule, be implied contrary to the expressed direction of the testa

95 Loebenthal N. J. Eq. 169.

v. Raleigh, 36

96 Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303; Quisenberry v. J. B. Watkins Land Mortgage Co., 92 Tex. 247, 47 S. W. 708; Lardner v. Williams, 98 Wis. 514, 74 N. W. 346.

Where the entire legal estate is

vested in trustees, a power to mortgage may be implied if necessary in order to preserve the estate or effectuate the expressed intentions of the testator, although no express power to sell or mortgage is given.-Rogers v. Rogers, 111 N. Y. 228. 18 N. E. 636.

tor. If the testator gives the executor the power of sale solely for the purpose of paying the debts of the estate or a charge placed upon the property by the testator in his will, and the property is devised subject to the payment of the debts or the charge, a power to mortgage is said to be implied from the grant of the power of sale except where the intention of the testator, as drawn from the provisions of the will, shows that the property was to be disposed of by sale only and converted into money.""

§ 1478. Effect Where Will Directs Executor to Distribute Estate in a Particular Manner.

The general rule is that where a testator directs the executor to do certain things, the executor has implied authority to perform the acts necessary to effectuate the testator's intention if the same be lawful. Where the testator is directed to distribute the estate in a particular manner which can be accomplished only by a sale of the property, or where it appears that the testator's intention was that the property should be converted into money and distributed as such, the executor is by implication granted the power of sale.98 But where particular real

97 Holdenby v. Spofforth, 1 Beav. 390;

Devaynes v. Robinson, 24 Beav. 86; Hoyt v. Jaques, 129 Mass. 286.

98 Davies v. Jones, 24 Ch. Div. 190, 49 L. T. N. S. 624; In re Bradley's Estate, 6 Ont. L. Rep. 397; Winston v. Jones, 6 Ala. 550; Lash v. Lash, 209 Ill. 595, 70 N. E. 1049; Going v. Emery, 16 Pick. (33 Mass.) 107, 26 Am. Dec. 645; May v. Brewster, 187 Mass. 524, 73 N. E. 546; Varick v. Smith, 67 N. J. Eq. 1, 58 Atl. 168; Mer

ritt v. Merritt, 32 App. Div. 442, 53 N. Y. Supp. 127; Bedford v. Bedford, 110 Tenn. 204, 75 S. W. 1017.

Where the will contained the following provision: "I hereby nominate, constitute and appoint P. B. M. executor of my last will and testament, with full power and authority, upon the decease of my said wife, L. A. S., to make such disposition of any and all of the property of which I may die seised and possessed, as may be