The opinion
Bridges, J.
(concurring) — I concur in the conclusion reached. While I will not say that it may not be based on the reasons given in the opinion, which are that the sale was unlawful because it was not for cash, I would much prefer that it be put on the ground of want of authority in the executor to sell except to pay the debts of the estate of the testatrix. The will provides that the estate shall be settled under our non-intervention statute and gives the executor “every power therein required, and specifically giving him power to sell all and any real estate when in his judgment necessary for the best interests of the estate. ’ ’ By the terms of the will, the title to the property in question was expressly vested in the appellant, subject only, of course, to the rights of creditors. It would be entirely inconsistent to so vest the title and at the same time
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authorize the executor to sell the property at his pleasure. The evidence seems to conclusively show that it was not sold for the purpose of paying debts of the estate. The fact that the will authorizes a sale by the executor in the interest “of the estate” also excludes the idea that it may be sold for any other purpose, and since the only possible interest “the estate” could have in the property was to sell it that the debts might be paid, and since there were no debts, the executor had no power to sell.