Olmstead

Suit to quiet title. Judgment for plaintiffs. Defendants appeal. In 1880 the owner of the property died leaving a will by which the whole of the property was devised to the widow, who was made sole executrix without bonds, and it was provided that “she have absolute power to sell any or all of said real and personal property at public or private sale, with or without advertisement, and without application to any court, and without approval or authority of any court whatever.” The will was admitted to probate and letters testamentary were issued to the widow. Acting under the power contained in the will, she sold the property to the defendant Eliza J. Olmstead without obtaining an order of sale from the probate court. She reported her proceedings to the court, however, and an order confirming the sale was made, and a conveyance executed. The plaintiffs are the four minor children of the testator. They were not mentioned or in any way referred to in the will, and claim as pretermitted heirs. The main question argued is whether the power of sale given by the will authorized a sale of the children’s interests without the previous sanction of the probate court required by the Code of…