Page:Federal Reporter, 1st Series, Volume 10.djvu/52

 40 FEDERAL REPORTER. �she pleases with; none of my children is to put any claim to the same, nor any other person. I further will and say, the next item, after carrying out all I liave named above, is that my executors shall pay all of my just debts out of the remainder of my estate, and then make Alfred and Rachel equal," etc. Then, after appointing his three sons executors, without seeurity, he says he wishes "that all of my business shall be settled without being recorded or going into the eourt-house." Taking the whole will together, it can scarcely be doubted that it was the intention of the testator to confer ample powers upon his executors to carry out this will, by selling the real estate, if necessary, to pay his debts, in exoneration of the particular legacies to his wife. That he had his lands in mind is plain, for he had given his wife choice of one section of the Arkansas lands ; and after the above-quoted direction to pay his debts out of the remain- der of his estate, he directs how the Isbell plantation shall go to Alfred, and be accounted for by him. The word "estate," unqual- ified or restrieted, is always construed to embrace every description of property, real, personal, and mixed. Qourley v. Thompson, 2 Sneed, 386, 393 ; Brown v. Crawford, 9 Humph. 164 ; Archer v. De- nea'c, 1 Pet. 585; Lewis v. Darling, 16 How. 1. Itwas held in Will- iams V. Otey, 8 Humph. 563, that where property was conveyed by deed in trust to pay debts there was a necessary implication of power to sell in the trustee ; and the authorities are explioit that where a will gives the power to sell land, if necessary or advisable, during the course of administration, it belongs by implication to the executer. Chandler v. Rider, 102 Mass. 269; Peter v. Beverly, 10 Pet. 532; Bank v. Beverly, 1 How. 134 ; Fcnwick v. Chapman, 9 Pet. 4G1 ; Tay- lor V. Benham, 5 How. 233; Robertson v. Gaines, 2 Humph. 366; Lockari v. Northington, 1 Sneed, 317; Porter v. Greer, 1 Cold. 568; Queener v. Trew, 6 Heisk, 59, 61 ; Green v. Davidson, 4 Bax. 488. The case of Queener v. Trcjv, supra, states the rule to be that not only will the executer be designated by implication as the donee to exe- cute an express power of sale, but the power bi sale itself will be implied from the nature and character of the requirements of the will, where it is manifest that the purposes of the testator cannot be carried out without a sale ; and such is undoubtedly the law. It is argued for the plaintiff that under the laws of Arkansas the executor could have sold the lands there without probating the will, or by pro- bating it simply without taking out letters, and that under this will he migbt have maintained ejectment. It was decided in Peckv. Hen- derson, 7 Yerg. 18, that a mere power to sell for the payment of debta ��� �