¶20. dissenting. Today the majority affirms a superior court ruling that was based solely on a finding that James Doran violated the covenant of good faith and fair dealing when he outbid his fellow heirs and then made plans to develop the land for investment purposes rather than keeping it in the *359family. I disagree and would reverse the decision of the superior court.
¶ 21. James placed the highest bids on all four of the properties at issue. He bid a total of $741,000 — an amount far in excess of the town assessment of $561,000 and the independent appraisal of $425,000. As the highest bidder, James offered a larger dollar payment to each heir than was available through a sale to any other family member. Even assuming that James was intentionally hiding his future intentions from others when he made his bids, his actions were well within his legal rights. Because there were no written limitations on alienation in the license to sell that was issued by the court without objection from any interested party, James’s attempt to assign his interest in the property after winning the auction was proper as a matter of law. Although our law imposes upon administrators a fiduciary duty to the intestate’s heirs, that duty must be more narrowly defined than the superior court defined it, or every probate proceeding will be open to collateral attack based on some heirs’ views of the intestate’s unexpressed wishes.
¶ 22. The principal difficulty with the majority’s holding is that it forces administrators to attempt to divine the wishes of the heirs — wishes which may be quite diverse — rather than fulfilling their duty to obtain the maximum amount reasonably obtainable for the property. It is fundamental to orderly probate administration that an administrator’s duty to the heirs, when there is no will indicating otherwise and a sale has been ordered, is to obtain the highest price possible for the property in question. See, e.g., Feldman v. Feldman, 198 A.2d 257, 258-59 (Md. 1964); Onanian v. Leggat, 317 N.E.2d 823, 827 (Mass. App. Ct. 1974); Desloge v. Tucker, 94 S.W. 283, 287-88 (Mo. 1906); Estate of Kane, 470 N.Y.S.2d 823, 825 (App. Div. 1983); Dombey v. Rindsfoos, 151 N.E.2d 563, 580 (Ohio Ct. App. 1958).4 In Dombey, for instance, the court concluded that in that case the fiduciary’s acceptance of *360an offer for sale that was less than “the highest price obtainable” was not in the best interests of the estate. 151 N.E.2d at 580. Similarly, in Desloge, the court refused to affirm a sale where the administrator sold estate land for $10,000 less than the highest offer. 94 S.W. at 287. The Desloge court noted that because of the lower purchase price, “[t]he real estate was unnecessarily sacrificed, and that is judicial reason enough to refuse to confirm” the sale. Id. at 288. The court further noted, with respect to the putative purchaser and the administrator, that their subjective desires or “feelings . . . entirely miss the heart of the issue,” which was simply to provide the heirs with as great a surplus as possible upon the sale. Id. at 287-88. As in Desloge and similar cases, the administrators’ duty here was to obtain the highest price reasonably obtainable for the property.
¶ 23. A duty to ascertain and harmonize the wishes of the heirs, of course, is considerably more difficult to define or fulfill. Here, decedent left more than twenty heirs, and they had varying views on how best to dispose of the property. At least two of those heirs expressed a desire that the administrator simply sell the property on the open market for maximum value. Some others, including Mary Pellegrino, believed that decedent wanted the property (or at least the original farm parcel) to remain in the family. In an attempt to decide upon the optimal disposition of the real property, the administrators sent a letter to the heirs laying out several different possibilities:
1. Sell the farm to a commercial developer (highest bidder).
2. Sell the farm to a non-profit land conservation group such as the Vermont Nature Conservancy that will preserve the current look of the farm and land.
3. Sell the farm with certain development or use restrictions.
4. Sell the farm to [a] family member with or without deeded restrictions.
5. Form a corporation of family members to manage the farm, timber and quarries (with or without restrictions).
*3616. Sub-divide the land into 22 pieces and give each family member their pro rata share of land (with or without restrictions).
7. Sub-divide the land along the historical boundary lines to create up to 4 parcels and deal with each parcel separately.
¶ 24. Some months later, the administrators filed a motion for a license to sell the real estate, making no mention in the motion of any restrictions as to initial purchase, subsequent alienation, or development. Notice of a hearing was sent to all of the heirs. After the first hearing in October 2004, a second hearing was held in January 2005 to “revisit” the license issue. The memorandum to the heirs announcing the second hearing reflected a determination that the property would be offered for private sale to the “Interested Parties” rather than by public sale. At the second hearing, the probate court found, several “issues” were raised “by various family members,” including, essentially, options three and seven from the list above. In light of these considerations, and because several interested parties did not attend the first hearing, the probate court ordered the administrators to convene a third hearing, on February 28, 2005. The court noted that “[a]ny family member who has an objection to the proposed sale presented by the Administrators should be prepared to attend the [February 28] hearing and present evidence on their objections.” We are not aware of any objections being raised at the February 28 hearing, and if they were raised they were not incorporated into the order that the probate court issued the following day — an order to which no recorded objection was made by any party in either the probate court or the superior court.
¶ 25. On March 1, 2005, the probate court found that the sale of the real estate was necessary to “provide equitable transfer of assets to the numerous heirs of this estate” and accordingly granted the administrators a license to “sell the real estate either at public auction or private sale.” See 14 Y.S.A. §§ 1613, 1651(6). The license imposed no limitation on who could purchase the real estate or what could be done with it after purchase. It made no reference to the administrators’ earlier letter to the heirs and did not impose any of the seven possible methods of limitation that had been described in that letter.
¶ 26. The lack of express limitations encumbering the property is not surprising; not all of the heirs wished to encumber the *362property by forcing the purchaser to keep it forevermore within the family. In addition to those heirs who wished to sell the property on the open market for maximum value, even some of those who expressed a desire to keep the property in the family took actions that implied that they did not wish any permanent encumbrances to be placed on the property. For instance, after the probate court authorized a sale, Mary Pellegrino sent a letter to the administrators and the probate judge offering to purchase the entire property for $561,000 “free of encumbrances.” The administrators did not accept the offer. Instead, the administrators sent all of the heirs a notice that they would all be given an opportunity to bid on the property in four separate parcels at a private auction. That notice, however, also expressed no limit on the prospective buyers’ ability to transfer or encumber the property after purchase. At the auction, no statements were made about any such limitation. As mentioned, James placed the high bids on all four parcels, and his total bid of $741,000 was far in excess of the town assessment of $561,000 and the independent appraisal of $425,000. The appraisal and the town assessment, of course, were both premised on a property free of encumbrances, as was Mary Pellegrino’s original bid, which explicitly contemplated a property wholly “free of encumbrances.”
¶ 27. James’s winning bids were approved by the probate court, which found that the auction had been conducted fairly and openly and that the administrators had fulfilled their duty to obtain fair market value for the property. On appeal, the superior court concluded that the sale at auction had been subject to an unexpressed limitation: that the property could not be transferred out of the family. This raises yet another problem with affirming the superior court’s opinion: the creation of an undefined estate in land, apparently by operation of law and without written formalities. Cf. 27 V.S.A. § 302 (“An estate or interest in lands shall not be assigned, granted or surrendered unless by operation of law or by a writing signed by the grantor or his attorney.”). The administrators had no power to encumber the real estate in this manner. Even if they had possessed such power, it was plainly not exercised in this case, and the superior court should not have relied upon an unwritten encumbrance as a basis for nullifying the sale to James.
¶28. The superior court’s ruling and today’s majority opinion fail to recognize that the administrator with a general license to *363sell has no power to do anything other than sell, without encumbrances, the real estate subject to the license. We so held in Brown v. Van Duzee, 44 Vt. 529, 533 (1872). In Van Duzee, the executor of a will had authority pursuant to a license to sell $1442.89 worth of real estate to meet the debts of the estate. Instead of simply conveying sufficient real estate to pay the debt, however, the executor sold part of the estate and in connection with it “undertook to convey a privilege of a foot-pass” over other lands of the estate. Id. The Court noted that the license “was an authority given by the law as administered by the probate court, and had no force except that which the law through the action of that court gave it.” Id. The Court held that the word “sell” in the license was “the operative word” and “imports that the whole title to any estate disposed of is to be parted with for an equivalent in money, and not that such estate is to be [e]ncumbered for money.” Id. This was so in part because the deed conveyed by an executor at a licensed sale is presumed to be as good as that which might have been conveyed by the decedent before death. Id. at 533-34; see also Thrall v. Spear, 63 Vt. 266, 270-71, 22 A. 414, 415 (1891) (“[P]ower given by a license from the Probate Court to sell real estate . . . give[s] no right to encumber such property”).
¶29. Here, of course, the administrators did not expressly encumber the property through a written instrument. Rather, after the sale, and without written formalities, the superior court sought to ensure that whoever purchased the property at private sale would not later transfer it outside the family. This amounts to the same sort of encumbrance that was rejected in Van Duzee and Thrall, with the added difficulty that the scope of the encumbrance here is entirely uncertain. It is unclear precisely who will have the right in the future to enforce the limitation on alienation, how long that right will last, and what the remedy might be for its violation. These difficulties highlight the sound reasons for imposing on administrators and trustees the plain duty of selling unencumbered real estate for the highest price reasonably obtainable, and not a duty to encumber property in the service of the heirs’ or administrators’ sentimental wishes.
¶ 30. It is a matter of black-letter law that the administrators’ duty was to “act in a prudent and business-like manner, with a view to obtain as large a price as might, with due diligence and attention, be fairly and reasonably obtainable under the circumstances.” Gould v. Chappell, 42 Md. 466, 470 (1875); see also *364supra, ¶ 22, and cases cited therein. The duty is an affirmative one, and “if the trustees fail in reasonable diligence in inviting competition, or adopt an injudicious and disadvantageous mode of selling the property, a [court] ought not to ratify the sale.” Gould, 42 Md. at 470. Indeed, in recognition of the importance of administrators following through on their duty to seek the maximum amount obtainable in a sale of the decedent’s real estate, some states provide administrators with a sales commission. See, e.g., Ohio Rev. Code Ann. § 2113.35. The policy behind such a statute is to ensure that all heirs receive the maximum benefit possible — the same policy that drives 14 V.S.A. § 1651(6), which instructs the probate court to authorize whatever type of sale will be most beneficial to all concerned parties. The superior court’s opinion, upheld by the majority today, discourages competition and is likely to result in sales for much less than is reasonably obtainable under the circumstances.
¶ 31. Had Raymond Doran wanted to sell his real estate at private auction before his death, he would have had the power to do so. He would also have had the power to impose upon the parcels sold the requirements that they not be resold except to named family members, that they not be developed, and the like. But his power to do these things could only have been exercised with written formalities, not by sitting silently by until a buyer attempted to resell the property and only then challenging the sale as contrary to his unexpressed wishes.5 If even decedent himself could not silently encumber the property, then neither could his administrators.
¶ 32. The superior court’s decision amounted to a holding that an intestate decedent’s unmemorialized wishes, evidenced only by the self-serving testimony of some of his heirs, can impose unspecified but apparently durable restrictions on the alienation and use of real property. The superior court’s remand so that the administrators could “begin anew” begs far more questions than it *365answers and can only result in further litigation. Among other things, we are left to wonder: (1) how will the administrators determine whether a future prospective purchaser intends to sell the property once it is purchased; (2) if the administrators do somehow determine that a purchaser intends to use the property in a way that they think decedent would have disapproved of, how will the administrators prevent that use; (3) if the administrators truly intend to impose on the property the limitation that no person outside the family can ever purchase it, who will police that limitation and how; and (4) assuming that such a limitation were enforceable in perpetuity, would not the asking price have to be drastically lowered, to the detriment of the value of the estate and in contravention of the administrators’ duty to the heirs?
¶ 33. The majority endorses the superior court’s attempt to divine the intent of decedent and “the administrators’ intentions based on the apparent desires of the majority of heirs to keep the property within the family through private auction.” Ante, ¶ 17. The majority characterizes the superior court’s actions here as pure fact-finding involving nothing more than the traditional weighing of evidence that lies within the expertise of trial courts. Id. But the majority ignores the underlying legal principle that prevents trial courts from engaging in this type of exercise in the first place: restrictions on the alienation of property should be achieved, not by after-the-fact guesswork, but by formal written instruments, such as wills, covenants, and limited licenses to sell. As detailed above, no such formalities were created with respect to the property at issue here. Although there were clearly discussions about the possibility of imposing various conditions on the sale, including deed restrictions, the administrators ultimately did not impose any. The superior court erred in concluding that written formalities could be dispensed with in the name of equity. The court’s conclusion was premised on a legal error that reduces probate administration to a swearing contest. We should not endorse such a process.
¶ 34. For these reasons, I would reverse the superior court’s decision and remand for entry of judgment in favor of James Doran. I am authorized to state that Justice Dooley joins in this dissent.
While many of the cases cited here involve trustees and executors, rather than administrators of intestate estates, and there are certainly differences between the fiduciary responsibilities of persons in these various positions, those differences are not material on the facts before us today. See Hall v. Schoenwetter, 686 A.2d 980, 983 (Conn. 1996) (“Although executors and administrators are not trustees, they ‘occupy a position in many respects analogous . . . and many of the rules determining the powers and duties of trustees apply to them.’ ” (quoting Hall v. Meriden Trust & Safe Deposit Co., 130 A. 157, 161 (Conn. 1925)).
Indeed, at least one court has held that even written instructions must be explicit before they can authorize administrators to stray from acting in a business-like manner at all times. See Musselwhite v. Ricks, 189 S.E. 597, 600 (Ga. Ct. App. 1936) (holding that when a will directed an administrator to collect debts “in the manner as near as practical” as the testator collected debts, and where it was “claimed that the testator had been very lenient in collecting the amounts due to him by his children,” the administrators still had a duty to be diligent in collecting debts from the testator’s children, so as to ensure that all of the heirs received their fair share of the estate).