59 N.H. 493 | N.H. | 1880
Lead Opinion
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 *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
Addendum
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, *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. *499
