Stokes v. Payne, Kennedy & Co.

Citations

• 58 Miss. 614

Syllabus

<p>Powek. To sell land. Mortgage thereunder, whether authorized.</p> <p>Mrs. A. S., by her last will and testament, devised ber land to her children, and conferred upon her husband, M. S., a power in these words: “And I hereby authorize' and empower said M. S. to sell and dispose of any of the property bequeathed in this will, when it shall appear to him to be advisable so to do, having an eye to the support and education of the children.” Some time after the death of the testatrix, M. S. mortgaged the land to obtain necessaries for the support of the children, and the same were furnished upon the faith of the mortgage. The debt for these necessaries not having been paid at maturity, the mortgagees filed a bill in chancery to enforce payment thereof by a foreclosure of the mortgage. A decree was rendered in favor of the complainants, and the defendants appealed. Held, that the language conferring the power on M. S. simply authorized the conversion of the property into money, and did not authorize him to mortgage it; and, as a general rule in this State, a power to sell will not be construed to include the power to mortgage.</p>