The only question presented by this appeal: Did A. Clarence Sutton, under Item 7 of the will of his father, Jeremiah Sutton, and the codicil thereto, have the right to borrow from defendant Metropolitan Life Insurance Company the sum of $3,500, and secure same by deed of trust? We think so.
The authorities are not harmonious. The codicil, in part, is as follows : “It is my will that my said sons . . . shall have the right to dispose of their respective shares by deed or will in fee, but if either or all of them shall die without issue seized and possessed of their shares, then I devise the share of such as shall die without issue and without having disposed of the same to my other children,” etc. The sons paid the insurance money as directed.
In Shannonhouse v. Wolfe, 191 N. C., 769 (774), is the following: “A clear expression of the proper construction of power to mortgage occurs in the case of Hamilton v. Hamilton, 149 Iowa, 329, and is as follows: 'Question is further raised whether, under the power given in *426the will, the plaintiff may mortgage the property. That a mere naked power to sell given to an agent or attorney, or to the trustee of any ordinary trust, does not include the power to mortgage is well settled by the weight of authority. In such ease the power is to be strictly construed, and will not be extended to cover an act not clearly within the terms of the instrument by which it was created; but a different rule has often been applied where a testamentary power has been given, not for the benefit or profit of the donor, but in the furtherance of some benefit which the donor confers upon the donee. The language creating such a power is to be liberally construed to promote the purpose or intent of its creation, and, if the power to sell is amplified by other words of broader or more general meaning, and the circumstances under which the gift is made be not such as to forbid that construction, the authority to mortgage for the purpose expressed in the writing may be inferred.’ ” See Troy v. Troy, 60 N. C., 624; Hicks v. Ward, 107 N. C., 392; Parks v. Robinson, 138 N. C., 269; Mabry v. Brown, 162 N. C., 217; Roane v. Robinson, 189 N. C., 628.
In 21 R. C. L., p. 780, is the following: “And it would seem to be unquestioned that the donee of a power of sale which is unlimited and is to be exercised for his own benefit may execute a mortgage under the power.”
In 92 A. L. R., Anno., p. 882, under “Power of Sale as including power to mortgage,” at p. 889, we find: “It has been held, or at least stated, in a few cases, that a power of sale in an instrument conferring such power, particularly where the power of sale is unrestricted by other language in the instrument, impliedly confers authority on the donee of the power to mortgage the property (citing numerous authorities). Some of the cases adhering to this rule have proceeded on the theory that a mortgage is a conditional sale,” citing authorities. At p. 899: “Where an estate is devised to one for life with power to ‘sell and convey the same by deed (part or all of it), the proceeds to be used for devisee’s comfort and otherwise as he may think proper,’ the power may be exercised by the execution of a mortgage. Kent v. Morrison (1891), 153 Mass., 137, 26 N. E., 427, 10 L. R. A., 756, 25 Am. St. Rep.; 616. In other words, an absolute and unrestricted power to sell for the benefit and in the discretion of the devisee of the power includes a power to mortgage. Ibid."
We have examined the case of Head v. Temple, 51 Tenn. Reports, 34, cited by plaintiffs. That case was construing a marriage settlement. The other cases cited we do not think necessary to distinguish, from the view we take of the language in the will in this case. The able brief of the plaintiffs is persuasive, but not controlling.
For the reasons given, the judgment of the court below is
Affirmed.