The court are of opinion that the plaintiffs had authority, under Mrs. Foster’s will, to sell and convey to the defendant three undivided twelfths of the parcels of land described in the contract between him and them. As Mrs. Foster acquired this fractional part after her marriage, it was not included in the marriage settlement. She therefore had the legal power to authorize her executors to sell it. And she did authorize them by her will, to sell it, as executors: The deed thereof, which they tendered to the defendant, would have given him a good title thereto; and by his refusal to accept that deed and make payment, according to his contract with the plaintiffs, he has made himself liable to this action for the damages which they have sustained in consequence of his breach of contract.
But the court are of opinion that the plaintiffs had not authority to sell the one undivided "twelfth of the land described in the aforesaid contract, and therefore that the defendant is not answerable to the plaintiffs for refusing to accept their deed thereof, and pay them the agreed consideration. Mrs. Foster owned this fractional part of the land before her marriage, and she conveyed it, with other real estate, to trustees, by a marriage settlement. By this settlement the trustees were empowered to sell the" real estate, with the- consent, in writing, of Mrs. Foster and her husband, or of the survivor of them. By the death of Mr. and Mrs. Foster this power of the trustees was ended. Mrs. Foster, however, by the marriage settlement, retained a power of appointment, under which she might direct, by will, how the *375property, which was conveyed to the trustees, should be distributed among her children. But she did not retain the power to authorize or appoint a sale of that property. Her will, therefore, gave no authority to the plaintiffs to sell the one twelfth of the aforesaid land. She could not give them that authority. It follows that the defendant rightfully refused to accept their deed of the one twelfth and pay the stipulated consideration.
The plaintiffs are entitled to judgment on the first count in their declaration, and the defendant on the second count