The referee has not found that the defendants, designated as "the seven," obtained by their diligence property which otherwise would have been lost; nor whether their diligence saved any part of the estate not already distributed; nor whether any of the estate not distributed has been lost by want of any degree of diligence in the defendants designated as "the three"; nor whether by extra diligence each of the three would have received as much as each of the seven; nor do the facts reported by the referee in detail establish the affirmative of either of these propositions.
The removal of the executor was opposed by the three defendants in 1874-'75, as it was also by three of the seven defendants, *Page 498 and was prosecuted by one only of the seven. The opposition to his removal did not prevent the petitioner from showing that the executor was an unfit person for the trust, or from showing any facts that would warrant the probate court in granting his petition.
The decree of the probate court, made January 11, 1876, requiring the executor to pay to each of the residuary legatees $5,500, is in no way modified or impaired by the decree in this suit. The sum collected by each of the seven in the suit upon the executor's bond must be reckoned as a part, and not in excess, of the sum of $5,500. An accurate accounting of the receipts and disbursements of the executor does not seem necessary for the purposes of this suit, for the referee finds that if the remaining assets (including the proceeds of the store and lot) should be distributed to the legatees who have received nothing, or to those who have received the least amounts, those legatees would not receive so much as six of the seven defendants. It was settled by the former decision that the will required equality among the residuary legatees. As the will gives the residue as a whole to the residuary legatees on the principle of equality, the distinction between real and personal property cannot be maintained for the purpose of making an unequal division of the residue in violation of the will. From the assets in the hands of the administrator, including the proceeds of the store and lot, the representatives of John P. Coffin are first to be paid till his share is made equal to the amount received by the representatives of E. W. Upham, with interest; then to the representatives of J. P. Coffin and E. W. Upham is to be paid a sum sufficient to make their respective shares equal to the next highest sum paid to the residuary legatees, and so on until the assets are exhausted.
As three of the defendants are the prevailing party, they are entitled to recover costs against seven of the others, and the administrator will recover his costs from the funds of the estate. The court at the trial term will also inquire into the costs and expenses of all parties, and make such an adjustment and equalization of all such reasonable and necessary costs and expenses incurred by all parties as have tended to the common benefit, and such as ought to be borne by all, to the end that the rule of equality, prescribed by the will, may be fully carried out; and such decree will be made, upon consideration of interest, costs, and expenses, as will follow that rule with exactness sufficient for practical justice.
Case discharged.
CLARK, J., did not sit: the others concurred. *Page 499