of the sale of the real estate within eighteen months from the death of the testatrix, they can now, over nine years after that event, lawfully execute the power of sale. The express power of sale is at the close of the will. It is not limited by its terms. The direction to divide and give the proceeds of the real estate to the legatees within eighteen months from the time of the testatrix's death, at the commencement of the will, is merely directory. There is nothing There is nothing in the will to forbid the exercise of the power after the lapse of the eighteen months. The legatees have a right to have the real estate sold to raise their legacies. The executors may still execute the power, and can make a good title under it."

In Marsh v. Love (1886) 42 N. J. Eq. 112, 6 Atl. 889, the will provided for a sale in the following language: "I hereby order and direct my executors, hereinafter named, and the survivor of them, to sell and dispose of all my real and personal estate not hereinbefore disposed of, either at public auction or private contract, whichever may be thought by them most advantageous to the interest of my estate, and to make, execute, and deliver good and sufficient deeds for said real estate to the purchaser or purchasers thereof; such thereof; such sale or sales to be made in one year after my decease, and sooner if deemed desirable by them." It was contended in this case that the language employed indicated an intention to limit the exercise of the power to a period of one year after the testator's death. The court dismissed that contention in the following language: "This construction is based upon the words and sooner' in the clause of limitation. The whole clause is, 'such sale or sales to be made in one year after my decease, and sooner if deemed desirable by them.' But the words 'and sooner' were evidently used to prevent the executors from construing the limitation of one year, as it would have stood without those words, as postponing the sale for the year, or, in other words, as prohibiting them from selling at any time within

the year. . . . The use of the words 'and sooner' does not warrant the construction for which the defendant's counsel contends."

In Molten v. Sutphin (1904) 66 N. J. Eq. 20, 57 Atl. 974, it appeared that the testator by his will directed that his farm be sold and conveyed by the executrix within five years from his decease and the proceeds divided. The chancellor, in holding that the power of sale could be exercised after the expiration of the period specified, remarked that the will had previously been before him, referred to the views then expressed by him, and said: "Although I gave the matter some consideration, what was said thereon was probably unnecessary to the decision of the case, for the bill was dismissed because of a lack of parties necessary to justify a decree requiring a sale of the lands. But I expressed the view that the executrix of Mrs. Brearley's will did not lose the power of sale conferred upon her by the sixth clause because the period of time mentioned therein had elapsed. Upon cases cited in that opinion, the view of this court was declared to be that where a limitation of time is imposed upon a power of sale, and is of the essence thereof, the power must be executed within the prescribed period, but where it is merely directory the power may be executed thereafter. Whether compulsory or directory is to be learned from the language of the whole will. That language seems to me to leave no doubt that the testatrix, in fixing the period of five years. from her death, merely meant to direct her executrix, and not to compel her, to sell within that period. My subsequent consideration of the question, upon the briefs filed in this case, has confirmed me in the view then expressed."

In Mott v. Ackerman (1883) 92 N. Y. 539, it appeared that two sisters owned certain real estate as tenants in common. The one who first died gave by her will a power of sale to her executors, to be exercised during the life of the surviving sister with her concurrence. The will then proceeded: "And on the death of my said

sister Maria, or as soon afterward as they may think advisable, taking into view the condition of the country, and the probable increase in the value of the property, and within three years from the proof of this will, I authorize, empower, and direct them to convert into money all my real and personal estate, which conversion shall be treated in law as if it had happened at the time of my sister's decease." Maria lived more than three year after the probate of the will, and no sale was made until after her death, and about twelve years after the probate of the will. It was contended the power of sale could be exercised only within the three years, and that the deed of the executors, tendered long after that period, was invalid. The court, however, declared: "But the testatrix added to her authority a command. She not only empowered her executors to sell, but directed them to do so. The purposes of the will required such sale, and the power was imperative. The neglect or misconduct of executors ought not to defeat the purposes of the testator, or destroy the rights which depend upon their proper performance of duty. We are not justified in supposing that any such result was within the contemplation of Eliza, and should, therefore, read the provision for a sale. within three years as not limiting the authority, but qualifying the command. The meaning is, I 'authorize' you to sell, and I 'direct' you to do so within three years after probate. It was an injunction to promptness in the exercise of the authority. Neglect to obey the command did not destroy the authority conferred. Nothing in the frame of the will indicates an intention to narrow or hamper the power to sell, but, on the contrary, the very provision as to time indicates a purpose to have the power exercised, and that promptly and without delay. Any other construction would force us to say that the power was not imperative, and that the testatrix intended to make the whole purpose and plan of her disposition contingent upon the discretion of her executors in selling or not selling within three years. During the

life of Maria, her assent was essential to a lawful sale. While she lived her interest and welfare was the paramount consideration. She lived longer than the three years, and it must be presumed withheld her assent to a sale. The executors, therefore, could not literally obey the direction of the will, and were not even blamable for the delay. Probably, just that emergency was not expected, but, whether anticipated or not, the power of sale was, and was intended to be, imperative, and was not limited by the injunction as to time which qualified the command."

In Wild v. Bergen (1878) 16 Hun (N. Y.) 127, it appeared that the testatrix and another became co-obligors on an undertaking. The other obligor was called on to pay the bond, and did so. The testatrix died before her co-obligor paid the claim, leaving a last will, by the seventh clause of which she directed, authorized, and empowered her executor to sell certain land described therein, to pay debts and legacies. The personal estate was exhausted. The executor sold a portion of the lands, and with the proceeds paid all debts but the coobligor's claim, and all the legacies. The seventh clause of the will directed the sale of these lands "within two years after my decease." In an action brought more than two years after the death of the testatrix for the purpose of enforcing equitable contribution from her estate, it was held that a decree could be entered compelling the executor to execute the power notwithstanding two years had elapsed. The court said: "The direction to sell the lands described to pay debts, in effect, made plaintiff a beneficiary under the power, entitled to demand its execution. The plaintiff's liability on the bond did not become fixed until after the expiration of the two years. It was not the intent of the seventh clause of the will to limit the execution of the power to two years. It directed the sale within two years, as a safeguard against the executor taking any. longer ime to pay debts and legacies. If this is not the true construction of the will, but that

the testatrix limited the execution of the power to the two years, the limitation would not defeat this action. The direction to sell the lands, and with the proceeds to pay testatrix's debts, imposed the duty upon the executor, which the plaintiff was entitled to have performed by him."

In Waldron v. Schlang (1888) 47 Hun (N. Y.) 252, affirmed without opinion in (1889) 113 N. Y. 665, 21 N. E. 1115, it appeared that the testatrix was the owner of the property which by her will she disposed of, with other property owned by her. By the sixth section of her will she authorized and empowered her executors, 'at any time within five years' after her decease, to sell and dispose of and convert into money all her estate, real and personal, except what she particularly mentioned, and to execute all necessary deed or deeds, or other instruments, for the proper conveying of the same. The court said: "It is evident that it was the intention of the testatrix to convert all of her property into money, which was to be divided in the manner directed by the will, and, when such appears to be the intent, a limit of the time within which the real estate shall be sold is inoperative. In other words, the power of sale remains in full force and virtue in consequence of that intent, it being a cardinal rule in the construction of wills that the intention shall prevail, if it can be done without violating any principle of law or public policy. It will have been observed that the direction to divide the proceeds is imperative, and this implies a power of sale imperative to that end."

In Fredericks v. Kerr (1908) 219 Pa. 365, 68 Atl. 835, the will provided as follows: "I further direct that all my real estate and personal property be sold and converted into money except any household goods my wife may desire for her own use. . . . I hereby grant unto my executor the term of five years in which to make sale of my estate as aforesaid, using said time as in the judgment of my executor and the family may be deemed best in the interest of my estate." The court, in holding that the

power to sell was not limited to the period of five years, said: "The manifest purpose of the testator was to prevent a compulsory sale by the executor at the instance of the beneficiaries within five years, and not to deprive the executor of a power of sale after the expiration of that time. Within the five years from the date of the testator's death the power of the executor was discretionary, made so by the testator, doubtless to protect the interests of the estate and to prevent a possible sacrifice of the property. He deemed it prudent that the executor should not be compelled to sell the real estate at an earlier period. Similar provisions are frequently found in wills, and they, in many instances, save the estate from great losses. Unless the view here taken of the clause. in question in the testator's will prevails, the plain purpose he had in disposing of his estate will be defeated. He did not intend that such results should follow the failure of his executor in delaying the sale of his real estate a few months after the expiration of five years from his death. We think it clear that the learned judge of the court below properly interpreted the intentions of the testator in holding that a sale by the executor within five years was discretionary, and that thereafter it was mandatory."

In Fahnestock v. Fahnestock (1892) 152 Pa. 56, 34 Am. St. Rep. 623, 25 Atl. 313, it appeared that the testator, after making several devises in his will, designated the executors of the will, on whom he conferred power to sell his real and personal estate, and further provided therein: "I hereby give them two years after my decease for the final settlement of my estate; but in case my executors for good and sufficient reason require a longer time, with the consent of a majority of my heirs, the time may be extended two years." The court on appeal, in affirming a decree dismissing a bill for partition of the real estate, said: “As there can be no final settlement of the estate in accordance with the will until the power conferred upon the executors, for the sale of the real and personal property is exercised, there

should be no further delay in the execution of it. This power was not destroyed by the default of the executors; it survived their failure to exercise it within the four years allowed by the sixth clause for a final settlement of the estate. During this period they had some discretion as to the time of its exercise, but they have none now."

In Rieker v. Kaetz (1918) 69 Pa. Super. Ct. 182, it appeared that the testator provided in his will as follows: "For the purpose of making distribution of my estate as hereinafter provided, I give my said executors, and the survivors or survivor of them, full power and authority, and empower and direct them, to sell, at public or private sale, in their discretion, any or all of my real estate, and execute and deliver good and sufficient deeds therefor to the purchasers thereof. All my real estate to be sold within one year after my decease." Nearly ten years after the testator's death the executors executed a deed of decedent's real estate. In disposing of the contention that the power of the executors had ceased after the expiration of a year, the court below said. "In this case the purpose of the testator was not to prevent his executors from selling after the expiration of the year from his death, but to urge prompt action on their part, so that the main purpose of the will might be carried out as soon as possible. This purpose, as expressed by him, is to distribute his estate among those entitled to it, according to the terms of the will. The execution of the power within the time limited is therefore directory, and is not of the essence of the power. To hold that the power lapsed at the expiration of the limitation would enable the executors to defeat the main intention of the testatorin fact, would result in destroying that intent and in depriving those entitled to receive the estate by the terms of the will of their shares in it. This, according to the authorities cited above, cannot be done. The power to sell, in our opinion, has not been destroyed by delay on the part

of the executors, but can be exercised by them now, so as to carry out the intention of the testator, in distributing his estate." This holding was affirmed on appeal.

In National Bank v. Smith (1891) 17 R. I. 244, 21 Atl. 959, it appeared that the testator had devised part of his property to trustees with a power of sale. The will also provided: "I further appoint and declare that the within trust may continue for the period of ten years from the time of my decease and no longer. . . . And upon the termination of said trust at the expiration of the term aforesaid of ten years from my decease,

I direct that the trust fund and estate shall be distributed and divided, and that said trustees shall convey the same discharge of said trust as follows and according to the devises and bequests herein made." It was held that the trustees could make a sale after the expiration of ten years.

In Myers v. Cody (1901) 22 R. I. 549, 48 Atl. 797, the will of the testatrix provided as follows: "I desire that my home estate on Narragansett boulevard in Edgewood, town of Cranston, state of Rhode Island, be sold within a year after my decease, provided a suitable price can be obtained for the same." It then provided that the money derived therefrom should be added to what she had, and that the whole should be paid to designated legatees. It was held that the power could be exercised after the expiration of a year. The court said: "It is perfectly clear from the will that the estate was to be sold. The will contained no residuary clause, except by providing that each of the legatees should be entitled to receive a proportional part of the surplus. The expression of desire was equivalent to a direction to sell. The limitation of time was dependent upon obtaining a suitable price. It evidently meant that while she desired a speedy sale she did not want the estate sacrificed by a sale before a suitable price could be obtained. We think, therefore, that the executor has authority to sell."

In the reported case (STORK V. MERCHANT), ante, 1392, the will under

consideration conferred power on the executors to sell and dispose of the residue of the property "at such time within five years from my decease, and upon such terms and in such manner as they may deem most advantageous." It is held that they could convey the property after the expiration of the five-year period.

In the frequently cited case of Pearce v. Gardner (1852) 10 Hare, 287, 68 Eng. Reprint, 935, 1 Week. Rep. 98, it appeared that there was a devise of real and personal estate to trustees with a provision that they should with all convenient expedition, and within five years after testator's decease, absolutely sell and convey such of the premises as should be of a salable nature. The court said: "The questions here are whether, on the true construction of the will, the words which direct that the sale shall take place 'with all convenient speed and within five years' are directory, and merely indicate the time in which the testator has desired that the trust should be executed, or whether they are imperative that the trustees shall effect the sale within and not after the five years. The answer to these questions depends upon the construction of the entire will.

The question

then, after all, is whether it is to be collected from the will that the sale, which must, at any rate, be effected notwithstanding the lapse of the five years, may not, after that time, be made by the trustees, or whether it must then be made under the direction of the court of chancery by the act of the court. I cannot impute the latter intention to the testator, especially as I find that he has directed that his trustees are to be the parties who are to apply the trust funds in the payment of his debts. I think that the expression of the will as to the five years is only directory to the trustees that they might make the payments out of the trust funds within that time, if possible."

In Cuff v. Hall (1855) 1 Jur. N. S. (Eng.) 972, it appeared that the testator was seised of lands in fee at Kensington, towards which the new parts of London were rapidly extending, but which they had not yet reached.

By his will he gave all his real estate to trustees, directing them to sell and convert into money, and hold the proceeds upon certain trusts. There then followed a provision that, notwithstanding the previous clauses of the will, the trustees might postpone sales, but not for a longer period than ten years from the testator's decease, and in the meantime vested them with power of granting building leases. The testator died in 1847, so that the ten years would expire in 1857. The progress of the buildings in the neighborhood was such as to render it improbable that the same could be demised on building leases before 1857, and therefore that a sale would probably lead to a sacrifice of the property. The object of the suit was to obtain a declaration by the court that the will did not make it obligatory on the trustees to sell within the ten years. The case of Pearce v. Gardner (Eng.) supra, was cited by the plaintiffs. The court said: "I quite agree with the case cited. The trustees can make a good title after the ten years; but it is so far obligatory between them and their cestuis que trust that, if the sales be postponed beyond that time, the onus will be on the trustees to show that the interests of the cestuis que trust have not been injuriously affected by the delay. I thought at first the best way would be, as the affair is now out of the hands of the trustees and in the discretion of the court, to direct an inquiry at chambers as to debts, and as to what is the best to be done with the freeholds. But as there appears to be no question but that the debts are paid, and there is an anxiety not to interfere with the discretion of the trustees, perhaps a better way will be now to direct that the trustees may be at liberty, notwithstanding the direction in the will, to postpone the sales until further order, and that they may, in the meantime, be at liberty to make such leases as they shall think fit; and give liberty to all parties to apply."

In Re Walton (1910) 17 Ont. Week. Rep. 760, 2 Ont. Week. N. 428, it was held that executors had power to con