This bill is brought by the complainants as executors of the will of Daniel Lyman to obtain from the court a construction of the will, and advice in administering the estate under it. The will appoints the complainants, together with Esther D. Chapin, now Mrs. Hammond, executors, and gives them the net income of the estate for the first year as compensation. It requests the payment of debts and expenses, but does not expressly charge the estate with their payment. It makes numerous pecuniary bequests and some devises. The bill is prosecuted against certain persons who are declared to be "all the persons interested in the said will and codicil thereto and in the property bequeathed therein," and against certain corporations which are declared to be all that claim, so far as the complainants know, to be interested in the same. Answers are filed by some of the defendants, some of them containing, by way of alleged cross-bill, prayers that the legacies may be decreed to be a charge on the real estate and on the rents and profits thereof, and that accounts may be taken and said charge enforced, etc., and for general relief.
The bill sets forth that the testator in his lifetime gave a mortgage for $50,000 on his Musee estate, so called, and owed, besides said debt, only a small amount. At a former hearing on a portion *Page 107 of the bill, one of the questions presented was, whether the complainants were bound to pay said mortgage debt, and if so, whether they must first exhaust the personalty, and whether, having done so, they had power to sell the estate for the payment. The court answered that in their opinion it was the duty of the complainants to pay said debt, "exhausting the personal assets before resorting to the real estate," and further that, in case of a resort to the real estate, they would "have to obtain leave to sell from the Court of Probate, the power to sell given by the will being only to sell for the payment of the legacies." A declaratory decree in accordance with the answer was entered without objection from any party. Subsequently certain of the defendants presented a petition setting forth that the complainants have obtained from the Court of Probate of North Providence a decree purporting to authorize them as executors to sell that part of the testator's estate situated upon the westerly corner of Westminster Street and Walker Street for the payment of said mortgage debt," and praying that they may be enjoined from so doing. The case is now before us on said petition.
The petitioners allege that the decree of the Court of Probate was made before the complainants had exhausted the personal estate, and they question the jurisdiction of the court on that account. Our statute, Pub. Stat. R.I. cap. 185, § 17,1 provides that whenever the personal estate "shall not be sufficient to pay the debts which the deceased owed, the expenses of his funeral and of supporting his family and settling his estate in the manner *Page 108 prescribed by law," the court of probate shall authorize the executor or administrator to sell so much of the real estate as shall be necessary to make up the deficiency. Another provision, cap. 179, § 13,1 empowers the court to authorize the sale of an entire estate, instead of so much simply as will be needed to make up the deficiency, when such a sale will be more advantageous to all concerned, the surplus beyond what is required to make up the deficiency to go as the estate would have gone if not sold. These provisions do not require that the personal estate shall be first exhausted, but only that it shall be insufficient. A prior exhaustion may be necessary in some cases to prove the insufficiency, but surely not in all; and there may be cases where, the insufficiency being manifest, it would be bad management to wait for such an exhaustion, since there may be delays which cannot be avoided in getting in the personal assets and converting them into money.
The petitioners also claim that, under the decree of this court above mentioned, it was improper for the complainants to apply for leave to sell the realty without first exhausting the personal assets, and that they ought to be enjoined on that account. This court declared that's it is the duty of the complainants to pay the mortgage debt of $50,000, exhausting the personal assets before resorting to the real estate." If the complainants do not follow the advice of the court, they will not be entitled to the protection of the court if the estate suffers in consequence; but it does not follow, because they have procured the decree of the probate court, that they intend to sell under it before exhausting the personalty; and the petition is, not that they may be restrained temporarily until the personalty has been exhausted, but that they may be permanently enjoined.
The petitioners urge that no part of the real estate ought to be sold to pay the mortgage debt except the part which is mortgaged. *Page 109 We do not see why not. After the mortgage debt has been paid, the sale of that part will no longer be embarrassed by the mortgage, and it is admitted that that part will have to be sold for the payment of the pecuniary legacies if it is not sold for the payment of the debts.
The main reason assigned for the injunction is that the suit, by force of the bill and answer, is an administration suit, and the petitioners are, therefore, entitled to have the estate taken out of the hands of the executors and administered by the court itself through the agency of masters or other officers of its own appointment. Conceding that this may be done by the court, we do not think the court is bound to do it. The testator has appointed the persons by whom he wished to have his will executed, and it seems to us that his wish in this respect ought to be respected as an integral part of his will, so far as it can be consistently with the rights of others. Moreover, the executors have already received, in the first year's income which they have received, their compensation for executing it. Why should we appoint a master to do in their stead what they have been paid for doing, thus increasing the expenses of administration? It has been our endeavor to avoid the reproach which too often attaches to suits of this sort by reason of the heavy costs and charges. InWadsworth et al v. Davis's Adm'r, 63 N. Car. 251, which was a creditor's bill against the administrator of the deceased debtor, the court held that the court might either compel the administrator to sell the real estate, the personal being exhausted, or might itself sell it through the proper officer. Here the executors are ready to go on and complete the administration without compulsion, if they are permitted to do so under the advice of the court.
At the former hearing we decided that the will does not give the executors power to sell the real estate for the payment of debts, and declared that they would have to apply to the probate court for leave to sell if the personal assets were insufficient. They applied under our advice. We advised the application because jurisdiction to give executors leave to sell is vested by the statute solely in the court of probate by which the will has been proved, in the first instance, and on appeal in this court, sitting, however, not in equity, but as the appellate Court of Probate. *Page 110 The petitioners say we might have appointed a master to sell the real estate under the charge thereon imposed by the statute, or given impliedly by the will. Granting that we might have done so, which we do not decide, the question is, were we bound to do so? If we could have done so, it would have been contrary to the course of equity practice for us to do so, since the creditors are not parties to the bill, and the charges are charges in their favor. The petitioners contend that the court having taken jurisdiction for certain purposes, is bound by the general rule to conduct the administration to its conclusion, and that, therefore, the application to the Probate Court was irregular, if not void. Ordinarily, without doubt, the court, having taken jurisdiction for certain purposes, will retain it and administer complete relief, but we do not understand that this is the invariable rule. The courts do not always do so in bills for discovery, and there are cases which hold that they may do so or not, according to their discretion, in bills for instruction. 1 Story Eq. Juris. § 73; Mallory's Adm'r v. Craige, 15 N.J. Eq. 73; Crosby v. Mason, 32 Conn. 482, 484. This court has entertained numerous bills for instruction, and sometimes has retained the cause until the administration was closed, and sometimes, and we think more frequently, has simply given the instruction asked for, leaving the executor to administer accordingly. But, applying the rule invoked by the petitioners the most strictly, we do not think it would exclude the court from using other courts as auxiliary to itself. If the complainants had begun an action at law for a debt due to the estate before this bill was filed, we think there can be no doubt that the action would be allowed to go on; and if meanwhile the complainants should die, that the court of probate would be permitted to appoint an administrator or administrators to succeed them. It has been said that when a court of equity "can determine a matter, it should not be a handmaid to the other courts," but we are not aware that it has ever been said that it shall never use the other courts as handmaids to itself.
The petitioners and the residuary legatee or devisee have by their counsel joined in a request to the complainants, as executors, to go on under the power given them in the will and sell real estate for the payment of legacies. We can see no difference, so *Page 111 far as the propriety of allowing the executors to sell is concerned, whether the power to sell is given to them by the will, or enures to them by leave of the probate court under a statute of the State.
We think the case at bar is one in which it is highly proper that the court should superintend the administration to its close, and if interlocutory orders other than those already made are necessary to such superintendence we see no reason why they should not be entered; but we do not think it is necessary to that end to take the estate wholly out of the hands of the executors, they being submissive to our direction.
Injunction denied.
1 As follows:
"SECT. 17. Whenever the personal estate of any person deceased shall not be sufficient to pay the debts which the deceased owed, the expenses of his funeral, and of supporting his family and settling his estate, in manner prescribed by law, the court of probate which shall have granted letters testamentary or of administration on such estate shall thereupon authorize and empower the executor or administrator appointed to settle such estate to make sale at public auction of so much of the land, or of so much of the wood or timber standing or growing on the land, or of so much of the stone in the quarry or otherwise on the land, or of so much of the coal, or of so much of the peat on the land of such deceased person, as shall be necessary to make up the deficiency of the personal estate for the purpose aforesaid, with incidental charges."
1 As follows:
"SECT. 13. In case of such petitions, if it should appear that, by a sale of only so much of the real estate as was absolutely needed, the residue of the estate or some specific part thereof would be so much injured as to render the sale of the whole estate more advantageous to those interested therein, the court may order the whole, as well as any specific part thereof, to be sold."