The executrix had no power of sale over the lot described in the complaint; it was expressly excepted from the power of sale given her by the will. The title was in the plaintiff and his brother.
But it is claimed that the plaintiff is estopped from asserting against the grantee of the executrix the title he and his brother had to the lot at the time of the execution of the deed by the executrix, for the reason that, knowing the purport of the deed of conveyance of the executrix, he did not at the time of its execution disclaim that his mother was his and his brother’s guardian, as it recited, or had authority to convey for them, but on the contrary remained silent, and signed as a witness.
These facts might, in a proper case, such as the case of a prior unrecorded conveyance to a subscribing witness, or of a claim by him of title by adverse possession, effect such an estoppel; but they do not in this case. The state of the title, and the-nature and extent of the mother’s trust or guardianship (whichever we call it) were shown by the will, which was recorded, and also apparently familiar to the defendant grantee, for it prepared the deed with express reference to the will, as the terms of the deed show; and the will is all there was to confer any authority over the property on the mother, excepting her right of dower. Where the condition of the title is equally open to both parties, from being on record, or otherwise, there can be no such estoppel founded on mere silence, accompanied by the act of signing the conveyance as a witness; it is necessary to make out a case of affirmative fraud, and that has not been done here (Brinckerhoff v. Lansing, 4 Johns. Ch. 65; James v. Morey, 2 Cow. 246; McPherson v. Rollins, 107 N. Y. 316; Brant v. Virginia Coal & I. Co., 93 U. S. 326; Wash, on Real Prop. b’k. III, ch. 2, § 6; Herman on Estop., § 923).
Judgment for the plaintiff.