The opinion of the court was delivered by
Kennedy, J.There does not appear to be any error in the ■charge which the court below gave to the jury in this case. John Hummer, the testator, certainly devised to the defendant a life estate in the land in dispute, with a power to his executors, John Hummer and Henry Slagle jointly, or to the survivor of them? after her death to sell it, or in the life-time of the defendant by her consent, in case the 1 and should become too burdensome to hei; and in case of a sale in her life-time, one-third of the money raising therefrom is to be paid to her. The land is given to the widow for life, and a mere naked authority to tire executors to sell, by, and with the consent of the defendant, or after her death. Both the executors having taken upon themselves the burden of executing the will, one alone could not make a sale during the life of the other. Their authority under the will must be strictly pursued, and being to them jointly could not be executed by either severally after both had joined in procuring and taking out letters testamentary upon it The sale in this case appears to have been made by John Hummer, one of the executors in the life-time of the other, without his being consulted, and I doubt very much whether a confirmation of it by John, and his executing a deed of conveyance to the plaintiff, who was the purchaser, after the death of the other executor, would make it good; most certainly npt without the free and renewed consent of the widow.
Some time previously to the sale, according to the evidence in the case, her consent to sell was obtained, but certainly in a very 1'oose way; upon a mere verbal agreement that she should have the interest on the money arising from the sale during her life, and if that should not be enough she should have some of the principal, without saying how much. A provision altogether different from that contained in the will, for by that, in case oí a sale being made of the land during her life, she was entitled to have one-third of the principal. Besides the arrangement, under which her consent was given, was only made by and with a part of the children, who were all equally interested. Those who were not present, and did not agree to this arrangement, were not bound by it, and had a right to *354object to the widow’s receiving any other part or portion than what was allowed by the will. Considering the arrangement then in the nature of an agreement, it could not be binding upon her, unless all those who hád the right and the power, to grant to her what was promised as an inducement and consideration for her agreement, had become parties to it, which was not the case.
It may be further observed, that her consent to sell, which is made necessary by the terms of the will, in order to effect a sale iii her life-time, is to be considered in the nature of a license or authority to sell. Now such a thing is revocable in its very nature, unless some valuable consideration should pass from the party receiving' the authority to the party granting it, so as to couple it with an interest, and make it irrevocable. In this case there was no such consideration, and the widow had a right to revoke her consent at any time before the sale, which, as appears from the testimony, was done.
By the will she had acquired a freehold estate in the land; it appears that, in consenting to a sale of it, she was agreeing to dispose of the land, which would seem to come within the scope and provisions of the act against frauds and perjuries, and that her consent ought, therefore, to have been in writing. In short, I think that the direction of the court below was correct in every particular.
J udgment affirmed.