By the Court,
PAINE, J.However the question may be determined, whether the executors had power, under the will, to exchange the lands of the testator as they did for other lands, or to sell them for anything but cash, we are fully satisfied that the disposition which was made, if it could be sustained, was the best that could have been made under the circumstances, and probably saved the estate from very considerable loss. But whether those exchanges can be sustained or not, we do not think it necessary to determine, as in either event the rule of accounting adopted below was erroneous. The referees and the court below held that the exchanges were not authorized by the will, and therefore held the executors to account for the cash value of all the lands transferred or attempted to be. Now if they were right in their legal conclusion that the will authorized sales for cash only, then, as the will does not devise the lands to the executors to sell, but gives them merely a power to sell, it would seem to follow that if the power was not pursued, the sale would be void, and no title pass. Haskell v. House, 3 Brevard, 242; Patton v. Crow, 26 Ala., 431; Thompson et al. v. Gaillard, 3 Rich., 418; Fay v. Fay and others, 1 Cush., 105; Carrington v. Goddin, 13 Grat., 601; Waldron v. McComb, *6881 Hill, 111; Same Case, 7 Hill, 835, where the judgment of the supreme court was reversed, though the correctness of the principles asserted by it, as far as they are applicable to this case, was conceded; Allen v. De Witt, 8 Coms., 276; Read v. Shaw, 2 Sugden on Powers, Appendix No. 28. Perhaps the same result would have followed if the will had in terms devised the lands to the executors with the same powers it now contains, under the provisions of sec. 12, chap. 84, R. S. 1858. See Germond v. Jones, 2 Hill, 596.
The difference between a conveyance by a trustee having the legal estate, and a conveyance by one not having the legal estate, but acting under a power simply, is well stated in the case cited from Grattan. In the former case, the title passes although the conveyance is in violation of the trust— though perhaps this would not be the case, under our statute, where the trust is expressed in the instrument creating the estate. Sec. 21, chap. 84, R. S. But in the latter case, the title does not pass unless the power is pursued.
If, therefore, the executors in this case were authorized by the will to dispose of the lands as they did, all parties in interest are bound by that disposition, and the executors could only be held responsible to make a proper disposition of the consideration received. If they had no such authority, then the title remains in the heirs, undisposed of, and the executors cannot be charged, in accounting, with the cash value as assets. Real estate, as such, is not a proper item with which to charge executors in their account. If there is real estate which they ought to dispose of to pay debts, they may be compelled, by an appropriate proceeding, to dispose of it. See sec. 81, chap. 85, R. S. If they unreasonably neglect or delay to sell, and the value of the estate is thereby lessened, they may be charged with the damage. Chap. 102, sec. 8, R. S. ,1858. But with this exception, they are chargable only with the personal estate, and the rents and profits, and proceeds of sales, of real estate which came into their hands. Secs. 1 and 2, chap. 102, R. S.
,We think, also, it was error to deny the executor Whiton the proper compensation for his services. The law declares he shall be entitled to it. He has never in any manner re*689linquished the right. It was denied to him because he testified that for a time he did not intend to take This is not a sufficient legal ground for depriving him of compensation. It is true that if one performs service upon an express or implied understanding that he is to receive'no pay, and this understanding was in whole or in part the inducement to his employment, he cannot afterwards claim pay. But such was not the case here. The executor was appointed to render services for which the law says he shall be entitled to be paid. His intention at one time to waive that right should not enable any one to compel him to waive it. Such intentions depend for their execution only upon the will of the party who entertains them. If the matter is brought to litigation, courts can determine only what are his legal rights, not what may have been his generous intentions.
The same remarks are applicable to the ruling by which the estate was allowed to share in the compensation received by Whiton for his services as administrator in the Sinclair estate. There was and could be no partnership in that administration. No agreement was shown by which Whiton was under any obligation to allow his partner any share of his pay as administrator. It was allowed solely upon his testimony that he had intended to share it with him, though he said at the time that he did not understand that his partner had any legal right to it. Thus he was cut off from his pay as executor, to which he had a legal right, and the estate was allowed a share in his fees as administrator, to which it had no legal right, merely because he had secretly intended voluntarily to do the same thing, while he supposed there was to be no litigation or dispute on the subject. Both rulings were erroneous.
It was also error to disallow the amount allowed by the county judge for the support of the widow during the settlement of the estate. It is not claimed that the amount was unreasonable. But it was disallowed because the payments were actually made by the executors to the widow before the county judge had made any order authorizing it. This was not a sufficient reason for rejecting it. If the executors *690SaW ^ ma^e Avances before an order by tbe county directing tbe amount, they would of course do it at tbeir own risk. If be should afterwards disallow any portion of it, they would have to be accountable for sucb portion. But if tbe amounts advanced were reasonable, and tbe county judge afterwards allowed them, tbe fact tbat be did. not decide upon tbe question until after tbe payments were made, is no reason wby they should be disallowed entirely by tbe circuit court. Suppose an executor should ad-vanee a legacy before any order justifying it, but it should afterwards appear to have been properly paid, and the county judge should allow it in tbe account, would tbe circuit court be justified in disallowing it entirely because no order bad been previously made? Clearly not. And tbe same is true of for tbe support of tbe widow.
This disposes of tbe exceptions taken by tbe appellants. We have not made tbe necessary computations to state tbe account in accordance with our decision, but shall leave tbat to be done in tbe court below.
Tbe judgment is reversed, and tbe cause remanded with directions to re-state tbe account according to this opinion.