When a will requires the executor to dispose of real estate, the probate court may license the administrator to sell the same for the purpose and in the manner intended by the testator. G. L., c. 201, s. 11. This section authorizes the probate court to give the administrator the power of sale which the will gives the executor. It does not require a license for the exercise of a power given by the will to the administrator. And a license is not necessary in this case, because the will expressly authorizes a sale by any person legally qualified to administer upon the estate; and the administrator is such a person.
Under the will giving the residue to the eleven first cousins of *Page 497 the testatrix, the residuary legatees take equal shares. The administrator has no more power to give one of them more and another less than one eleventh of the residue, than he has to give the whole to one, or none to any, or to violate any other provision of the will. An equal division of the residue being required by the will, and an exercise of the administrator's power of selling real estate being necessary for such division, it is his duty to exercise that power, and to make such payments of the proceeds as will accomplish that division.
All the decrees and agreements in relation to the settlement of the estate were apparently made without any intention of violating the testamentary requirement of equality among the residuary legatees, and with the understanding that their equal rights would be maintained by all necessary proceedings in the final settlement. Upon this construction of the decrees and agreements, all the objections of seven residuary legatees to an equal division of the entire residue are overruled, except the objection that three of the others were negligent, and that the seven are entitled to retain the fruits of their own diligence. On this point the facts have not been fully found. Whether the seven, by their diligence, obtained property which, without their efforts, would have been lost; whether anything was lost by the want of any degree of diligence in the three; and whether, by any degree of diligence, each of the three would have received as much as was secured by each of the seven, — are questions we do not decide upon the evidence. Of this part of the case there should be a new trial.
Demurrer overruled, and case discharged.
ALLEN, J., did not sit: the others concurred.
The foregoing opinion having been delivered at the June term, 1879, a further hearing was had before the referee, who made an additional report, the nature of which sufficiently appears in the opinion of the court delivered at the June term, 1880, by