This case depends on the validity of the tenant’s title. The demandant claims title under the will of his father, John Cooper; and the tenant under two deeds from Lydia Cooper, the executrix of John Cooper’s will, which contained a power for her to sell such part of his real estate as might be necessary for the payment of his debts. The demandant objects, that, by Lydia Cooper’s first deed to the tenant, the power was not well executed ; as no reference is made to the power, and as the executrix had an interest in the premises sold, the same having been set out to her as her third, in the testator’s estate. In such case, the general rule of construction is, that the conveyance is to be applied to the interest, and not to the power, unless it appears that the intention of the grantor was to execute the power. And the tenant’s counsel contends, that such intention does appear by the *190deed ; it being a conveyance of a fee simple estate, and as it is alleged to be sold for the payment of the testator’s debts. 4 Kent, 335.
But we have not found it necessary to decide this question of construction, as we are of opinion that the tenant took a valid title in virtue of the subsequent sale, under the license from the judge of probate. To the validity of this sale several objections have been urged. The first objection is, that the sale was made by Lydia Cooper, as administratrix of the testator’s estate, and not as the executrix of his will. But we are of opinion, that this is not such a misnomer or misdescription of the capacity in which the executrix acted as to invalidate the sale. By law, she was bound to administer the testator’s estate, and to render a true account of her administration, and might therefore be described as-administratrix, as well as executrix, although the latter would be the more appropriate description.
The second objection is, that the deed was not made until more than a year after the license was granted. But this objection cannot be maintained since the St. of 1840, c. 97, which in terms extends to past as well as future sales. The facts agreed bring this case within that statute.
The remaining objection is, that the sale was not made until after four years from the time when the executrix took out letters testamentary, and gave notice thereof as the law directs. But we are of opinion that there is no foundation for this objection. By the Rev. Sts. c. 71, § 38, it is provided, that in case of an action, relating to any estate sold by an executor or administrator, in which an heir, or other person claiming under the deceased, shall contest the validity of the sale, it shall not be avoided on account of any irregularity in the proceedings, provided it shall appear, 1st. That the executor or administrator was licensed to make the sale by a court of competent jurisdiction ; 2d. That he gave bond approved by the judge of probate; 3d. That he took the oath prescribed by the statute; 4th. That he gave notice of the time and place of sale according to the statute ; and, 5th. That the *191premises were sold accordingly by public auction, and are held by one who purchased them in good faith.
All these requisites to support this sale appear by the statement of facts. It is denied, however, by the plaintiff, that it was competent for the court to grant the license after the four years. It has, however, been frequently decided otherwise. It was so decided in the case of Allen, Petitioner, 15 Mass. 58, although in that case the license was refused, the court holding they had a discretionary power in that respect. And so it was decided in the case of Richmond, Petitioner, 2 Pick. 567, and in that of Hudson v. Hulbert, 15 Pick. 423. In the latter case, the license had been granted after the four years had elapsed; and it was decided, that the sale was not rendered void by that circumstance. And we have no doubt of the correctness of these decisions.
Demandant nonsuit.