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Serving
Massachusetts Agencies

Power of Sale in Will

Probate

Title Standard No. 10 of the Massachusetts Conveyancers' Association, which cites the famous letters between George A. Sawyer and John C. Gray, provides that a title derived through a deed given under a power of sale in a will is good as against creditors and devisees. The Standard appears to be without reservation, as do the famous letters.

Some commentators have suggested that the power, however, is limited to, and can be exercised only in connection with, the payment of debts, expenses of administration, death taxes or distribution regarding the estate, and can not be utilized merely to strip devisees of their title. See Park, Massachusetts Practice, Real Estate Law, with Forms, West Publishing Co. (Second Edition, 1981), §748 and Crocker, Notes on Common Forms, Little, Brown & Company (Seventh Edition, 1955), §923.

In Allen v. Dean, 148 Mass. 594, 20 N.E. 314 (1889), the court did restrict the exercise of the power to the payment of debts of the estate, but it appears that the case was based on the wording contained in the power.[1] Allen does not appear to put Title Standard No. 10 in doubt, inasmuch as it cites cases where the language used permitted the executor to sell with discretion.

Assuming that the power in the will you are examining does not limit its exercise to the "settlement of the estate," or similar language, and assuming that the power can be exercised at the discretion of the executor, I believe that the title will be good if taken pursuant to the exercise of the power. 

1 In Allen the power given was to be exercised "in the settlement of the estate," and the court interpreted this to restrict its exercise to those situations where it was necessary to sell real estate to pay debts, expenses of administration and the like necessary to be paid in connection with the filing of a final account.