We are asked to determine whether the plaintiff individually and as executor has power to convey a good marketable title to defendant of the premises described in the submission under the power of'sale contained in the-will of Elizabeth D. H. Odell, his wife. By the terms of her will' she gave, devised and bequeathed all of her property, both real and personal, unto her husband (the plaintiff), to have and to hold, use and enjoy the same, and the rents, issues, profits and income thereof for and during his natural life, with the remainder to decedent’s two sisters, and provided: ' “ Lastly: I hereby make, nominate, Constitute and appoint my said husband Isaac N., Odell sole' executor of this my last will and testament, and , hereby authorize and empower him in his discretion, to' sell either at public auction or1 private sale, any and all of my real estate, and ■ good deeds of conveyance give to the purchaser or purchasers; and. I further direct that he shall not be required to give security; hereby revoking all other or former wills' by me made.” September 18, 1906, the plaintiff entered into a contract whereby he agreed to convey to defendant the house and lot No. 731 Putnam avenue,, borough of Brooklyn; New York, which was_the only real estate left by decedent, subject to a mortgage of $4,500, for the- consideration of $9,200. At the time and place mentioned in the contract, plaintiff tendered to defendant a duly executed and acknowledged executor’s deed of said premises which contained, among other clauses, the following: “ And all the estate therein, which the said party of the first part (plaintiff) has, or has power to convey or dispose of, whether individually or . by virtue of said , will or otherwise.” Defendant refused to accept this deed on the ground' that plaintiff, being a life tenant, could not convey a valid title to the premises. The plaintiff is a feeble old man seventy-eight years of- age, and dependent upon the property left under this will for his support. Nothing is received from the real estate, and his only
ITirsohberg, P, J., Hooker and Miller, JJ., concurred; Gaynor, <L, concurred in result. : '■ . 1
Judgment for the plaintiff, with costs, in accordance with the terms of the submission.