By the first item of the will, Elizabeth B. Sanborn, the widow, took a life estate in the real estate of the testator, coupled with the power to sell any or all of the same in fee. We assume, without deciding, that the power of sale does not give her an absolute right to all of the proceeds of such sale.
It is contended by the plaintiff Williard C. Hardy that the sale by Mrs. Sanborn is a cloud upon his title as executor of the will, since he needs to make a sale of the land for the payment of the debts and charges of administration of the estate of the testator; and by the plaintiffs Addie M. Hardy and Susan A. Poore that the sale constitutes a fraud upon their rights.
So far as the executor is concerned, any sale of the real estate by a devisee under the will is subject to his right to sell or mortgage under a license of the Probate Court for the payment of debts and charges of administration, and the deed to William N. Sanborn, Jr. shows upon its face that it is made subject to this right. The grantor states therein that her title “is derived by will of” her “deceased husband,” and she covenants that the land is free from all encumbrances “ except the lawful debts of my [her] deceased husband.” It does not appear that the land is held adversely by the grantee, and he is therefore presumed to hold under the terms of his deed. So far, therefore, as the executor is concerned, there does not seem to be any need of this bill. The deed, under the circumstances, is no cloud upon the right of the executor to sell or mortgage by virtue of a license from the Probate Court.
While the answers to the bill affirm the right of the grantor to make the conveyance, they must be interpreted as meaning a conveyance such as this was, namely, subject to these rights of the executor. Whether the sale upon the assumption we liave made is a fraud upon the rights of the other plaintiffs depends upon the character and circumstances of the transaction. The bill alleges that “ the conveyance was made without any necessity therefor, and the sole motive therefor was to defraud the *407plaintiffs Addie M. Hardy and Susan A. Poore of the real estate devised to them by the will.”
But we do not think these allegations of the bill are sustained by the evidence. The evidence shows that the sale was made under the power in the will, and that Sanborn, the grantee, has made arrangements to pay the appraised value of the property;, to wit, §1,400, less the debts and charges of administration ; and that he is ready and willing to pay that sum, and also the debts and charges of administration. The sale was made under the power given in the will, for a sufficient pecuniary consideration and in good faith. The bill therefore should be dismissed* with costs. So ordered...