53 Pa. Super. 652 | Pa. Super. Ct. | 1913
Opinion by
Emmeline Simmons died March 3, 1898, testate and seized, inter alia, of the premises in dispute. By the fifth paragraph of her will, duly admitted to probate, she devised the said premises to her two sisters and her brother, subject to a life estate in favor of her surviving husband. The brother, who was named as her executor, has since died, and his children, with the two remaining devisees of the testatrix, are the parties plaintiff claiming the title to the premises in dispute under the devise aforesaid. The husband of the testatrix who survived her has also died, and the plaintiffs have therefore a clear paper title as the successors of Emmeline Simmons, under whom all parties claim.
It will be observed the will of the testatrix worked no conversion. It contains no absolute direction to sell. It simply invests her executor with power to make a sale of the real estate “for the payment of my debts or for any other purpose.” The will creates no trust to -be carried out by the executor other than the ordinary one imposed
We are not confronted, as we view it, with any question as to the duty of a purchaser, from the donee of a power properly exercised, to see to the application of the purchase money. Our proposition, therefore, is not controlled by Doran v. Piper, 164 Pa. 430; Eisenbrown v. Burns, 30 Pa. Superior Ct. 46, and kindred cases. Here we are to determine whether or not there was a lawful exercise of the power conferred by the sixth paragraph of the will of the testatrix quoted. A purchaser from the donee of a power is always bound to see that the power on which he relies actually exists and is being lawfully exercised. This was the situation of the purchaser in the present case. It therefore belongs to the class of cases of which Wilkinson
Judgment affirmed.