In this and the two following cases, argued at a former term, opinions were now read, as drawn up by
Dewey, J.The demandant claims the premises in controversy under a deed from Jonas Tucker, acting under a supposed authority, derived from the last will of Ephraim Copeland. The validity of this deed is the subject of the present inquiry.
*570Although under another form, yet the construction of that clause in the will, giving Tucker a power to make sale of the lands of Copeland, was much considered in the case between these parties, in 13 Met. 220. The title then set out by Clark was a conveyance by a deed from Dunbar, the administrator, who claimed to have the power of sale of the lands, as successor in the administration, and that, as such administrator, he might lawfully sell the same for the payment of debts and legacies, without any order for such sale from the court of probate, or this court.' The former case, it is true, required no farther decision than that Dunbar had no power, under the will, to make sale of the lands for the purposes for which Tucker was authorized to sell them. But the decision of that point involved, to a great extent, the farther question of the authority of Tucker to make such sale, although he had renounced the executorship. Indeed one of the strong grounds, set forth in the opinion of the court, as a reason why Dunbar could not sell under the will, was based upon the direct assumption of the continuance of the power in Tucker to make such sale and conveyance, as trustee under the will, after he had renounced the executorship.
Subsequently to this decision, and, as we may suppose, acting in reference to it, Tucker assumed the trust under the will, gave bond as such trustee, and proceeded to make sale of the lands for the purposes stated in the will. Clark became a purchaser of that portion of the land which is demanded in the present suit, and received from Tucker a good title, if it was competent for Tucker to give one. Upon this title Clark now relies, and, for the purpose of sustaining it, he refers us to the opinion and views of this court, as expressed in the former case between himself and Tainter; and especially to that part affirming that the power of sale still continued in Tucker, notwithstanding he had declined the executorship. In that case, in assigning the reasons why the power to make sale of the lands did not vest in Dunbar, on his appointment as administrator, it was said by the court, in the opinion pronounced: “ Tucker, the donee of the power, has never renounced it, and the consequent trust; and we are *571not aware of any impediment to his executing it; ” and again : “ It is clear he was both trustee and executor, under the will, and the power to sell, being coupled with a trust, has not been relinquished.” These positions, thus stated, are expounded and enforced in an argument by the learned judge. This language fully recognizes the power 'of Tucker to sell the lands, as a continuing power, and one that he might lawfully exercise; and had it come from the court in another form, as for instance in answer to the petition from Tucker, asking the direction of the court as to his power and duties, it would be at once held conclusive. Although not given in that form, yet it was an opinion of this court, giving a construction to this will in reference to the power of sale given to Tucker, and the effect of his renouncing the executorship, upon that power.
As it seems to us, the view taken in the former case must now be held to be the law applicable to the power of Tucker to sell. In the former case, the title of Clark was that of a bond fide purchaser from an administrator acting, as he supposed, under authority vested in him by the will, but, as the court held, under an erroneous view of his authority. The court assigned two reasons for this opinion. 1st. That the power to sell, conferred on Tucker, was a personal confidence, and so not transmissible to Dunbar. 2d. That the power vested in Tucker was not annulled by his renunciation of the executorship, inasmuch as he was also a trustee, and so the power to sell remained in full force.
The tenant, Tainter, relies upon this opinion for one purpose, viz., to show that the demandant has no valid title under the administrator’s deed, and that the power of sale, vested in Tucker, was not one that would pass to an administrator with the will annexed; but at the same time he would repudiate the second ground assumed by the court as a reason for rejecting this title through the administrator, viz., that Tucker had never renounced the power of sale, and that he might still exercise it.
Considering that the case of. Tainter v. Clark was so very recently decided, and that it was a question of the construction of this will, that it was deemed proper by the court to con* *572sider, as a branch of the inquiry, the question of the continuance of the power in Tucker to sell, and to express an opinion favorable to such power, and that, under that opinion, he has assumed to exercise it, and made various sales, we think the question must now be considered as settled, and that it was competent to the plaintiff to acquire a good title as against the residuary devisees of Ephraim Copeland, by a deed from Tucker acting under the authority vested in him by the will of Ephraim Copeland.
We have not overlooked the concluding paragraph, in the opinion referred to, as to the proper remedy for the administrator, added by way of caution to the parties as to the course to be pursued; and although its language would admit of the construction that the court intended to express no opinion as to the power of Tucker to convey, if he voluntarily assumed to act as trustee, and to sell under the power, yet. we apprehend that the remark was made rather with reference to the other modes named, of remedying the evil arising from the invalidity of the sale by the administrator, inasmuch as upon the question of the power still remaining in Tucker to sell, the court bad expressed an opinion, and had assigned that as a good and sufficient reason for denying the authority of the administrator to sell, under the power in the will.
It is to be observed that this is an action against one who claims to hold the land as heir at law to a devisee under this will. As to such persons the devisor has the full right to dispose of his estate in such manner and under such incumbrances, as to trusts and powers to sell, as he may deem expedient. This case raises no question of the rights of the creditors of an insolvent estate. Nor is there any conflict between an administrator with the will annexed, who has, under a license from the court, made sale of the estate to pay debts and legacies, and a trustee clothed by the testator with power to sell. The administrator has made no such application for leave to sell, and no conflict arises, except with the heirs at law of the devisees.
The result is that the demandant, having acquired a good title by the deed of Tucker, is entitled to maintain this action.
Judgment for the demandant.