Power of Sale: Reference to Power
In Gould v. Mather, 104 Mass. 283 (1870) a deed from an executrix did not specifically mention the power, though it was contained in the will. The court said that the execution of the power is purely a question of intention and the intention is to be gathered from the whole instrument. The court said:
All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument. It is sufficient that it shall appear by words, acts or deeds, demonstrating the intention. (Citation omitted.) [The executrix] in this deed professes to convey land which belonged to the estate of Ozias H. Mather. She does it in the capacity of executrix of his last will, which is equivalent to saying that she is acting under his last will and refers to that will as containing the authority under which she acts.