Massachusetts Agencies

Power of Sale in Will: Devolution to Successor


Park, Real Estate Law with Forms, Section 748, states:

When a power of sale is given to an executor in a will, the power attaches to the office, and can be exercised by the executors or the survivor of them until the purposes for which was given are effectuated . . . . (Emphasis added).

The portion of the text that I have emphasized is correct, but incomplete and suggests that if A and B are executors, then if A dies B can still exercise the power. This, of course, is not your question. Your question revolves around successor or substitute fiduciaries and whether they can exercise the power to sell. The law is set out in Mayberry v. Carey, 268 Mass. 255, 167 N.E. 281 (1929):

The general rule is, that the duties of an executor, resulting from the nature of his office, and charged upon him as executor, devolve on an administrator cum testamento annexo [with the will annexed], where the authority is not necessarily connected with a personal trust or confidence resposed (sic) in him by the testator.

Admittedly, in Mayberry the testator's will gave the executor a power to sell and contained the following language: "Whenever in this will I have used the word 'executors,' I include their survivor, and the remaining sole executor in case one does not qualify, and any administrator or administrators with the will annexed." It appears that the court may have given weight to this language.

However, in Newhall, Settlement of Estates, Section 62, in citing Blake v. Dexter, 66 Mass (12 Cush.) 559 (1853), states:

[An administrator with the will annexed] has, of course, all powers conferred by law upon an executor or administrator, and in addition, such special powers conferred by the will upon the executor named therein as are necessary for carrying out the provision of the will, but not those which involve personal trust and confidence. (Emphasis added).

Clearly, when the power is coupled with a trust to liquidate property and distribute the proceeds, the power to sell will devolve to the administrator with the will annexed. See May v. Brewster, 187 Mass. 524, 73 N.E. 546 (1905). When the power is not coupled with any trust or any other interest there is language in Greenough v. Welles, 64 Mass. 571, 10 Cush. 571 (1852) which suggests another result. However, our position is that the power does indeed follow the office and that the administrator with the will annexed may exercise the power to sell.