Knowlton, C. J.
These three suits in equity were consolidated and heard together before a single justice, and reserved for the consideration of the full court. The last of them, which we will consider first, is a bill by an administrator de bonis non with the will annexed of Hannah E. Cogswell, late of Brookline, deceased, asking for instructions in the settlement of her estate. It is necessary to sell real estate to pay debts and charges of administration, and the first question is whether the legacy to Helen R. Robinson, the sister of the testatrix, of “ all moneys or estate that may be recovered in the action of law . . . against one Francis Fisher Robinson and one Charles C. Morgan, named as trustee in said action,” which moneys amount to $984.60, collected by the plaintiff as the proceeds of the judgment obtained in the action, is to be paid in full to the legatee or to be diminished by way of contribution for the payment of debts.
We are of opinion that this was intended by the testatrix to be a specific legacy, and therefore not subject to be diminished by way of contribution so long as there is property devised generally sufficient for the payment of the debts. R. L. c. 135, §§ 26, 27. Blaney v. Blaney, 1 Cush. 107, 115. This sum, with any interest that has accrued thereon, should be paid to Helen R. Robinson.
Another question is whether the mortgage of $5,000, which is an incumbrance outstanding upon a part of the real estate, is a debt of the estate to be paid by the plaintiff. Upon the facts stated, this debt appears to be barred by the special statute of [84]*84limitations. It is therefore not a debt to be paid by the plaintiff, but is an incumbrance upon the real estate, subject to which the property will be sold if a sale of this lot is made by the plaintiff.
The question most discussed among the parties relates to the request for an instruction to the plaintiff as to which of the parcels of real estate he first shall sell or mortgage,, and which of the parcels he thereafter shall sell or mortgage if it becomes necessary to sell a second parcel. The power to authorize such a sale, of real estate resides in the Probate Court, under the R. L. c. 146, §§ 6-8. In a proceeding of this kind this court cannot direct or control the Probate Court in its action under these sections. All parties interested join in the prayer of the plaintiff for instructions on this point, and we think the court properly can instruct him" as to his action in making an application to the Probate Court. The decision on his application will depend upon the view of that court, dealing with the case as it then is presented.
The testatrix made her son and her brother executors of her will. After providing for the payment of her debts and funeral expenses, and for the disposition and care of her cemetery lots, and after giving to her sister her wearing apparel and the specific legacy already referred to, she gave to her son Dr. Cogswell and her brother Dr. Hall, “ their heirs and assigns in fee simple,” all her real estate. She then made numerous provisions as to the management and disposition of it, and as to payments to be made from the proceeds of it; Although she did not use the word “trust” or “trustee,” we think the effect of the will is to give to Dr. Cogswell and Dr. Hall the legal title to all this property, to be held in trust to manage and finally dispose of it according to the directions subsequently given in the will. In Hall v. Cogswell, 183 Mass. 521, 523, it is said that the clause giving Dr. Cogswell $6,000 out of the proceeds of the sale “ creates a trust or a charge on these two houses.”
The double dwelling house numbered 9 and 11 Centre Street, built by the testatrix, is treated by her in different particulars as one estate. She provides that it shall not be sold until the expiration of five years after her decease, and she refers to “ the [85]*85balance of the money or estate remaining from the sale of said dwelling houses.” In reference to the use to be made of them so long as they remain unsold she considers them separately. Number 9 is to “ be used, occupied and enjoyed as and for a home for said Dr. Charles F. Cogswell, Dr. Newbert J. Hall, Helen R. Robinson and her son, John Brooks Robinson, so long, as said Dr. Cogswell and Dr. Hall shall own the same.” These persons are her son, her brother, her sister and her nephew. She evidently contemplated a use of the property by these relatives as members of one family, living harmoniously together. The property was to be “ enjoyed ” as a “ home.” For reasons which do not fully appear, these persons fell into controversy, and litigation has been going on among them ever since the death of the testatrix, which occurred more than six years ago. Three times before the present suits were brought this litigation has been before the full court. See Hall v. Cogswell, 183 Mass. 521; Cogswell v. Hall, 183 Mass. 575 ; Cogswell v. Hall, 185 Mass. 455. Dr. Cogswell ceased to occupy the house in July, 1900, and John Brooks Robinson gave up his residence there in 1905, and subsequently released and conveyed all his right, title and interest in the estate to Dr. Cogswell. The single justice found that, as long ago as July, 1900, the counsel of Dr. Hall addressed a letter to the counsel of Dr. Cogswell, telling him that Dr. Cogswell would be charged for lodging and care and attention in the house from the expiration of forty days after the death of the testatrix, and stating other things indicating an attitude of hostility in reference to the rights of the parties under the will. The judge also found that Dr. Cogswell left the premises and remained away in consequence of the letter and the strained relations which had arisen between the parties over the settlement of the estate. It is very plain that these beneficiaries cannot occupy and enjoy the house as a home in the way intended in the creation of this part of the trust. It is contemplated by the will that the trustees might sell the property at any time after the expiration of five years. We see nothing in the existing conditions which should make the plaintiff hesitate to apply for a license to sell this part of the house for payment of debts and charges of administration. No reason appears why the plaintiff should not apply for leave to sell the [86]*86other part of this double house for the same purpose, if, as seems likely, the sale of the first would not bring enough to pay debts and charges of administration. Even if it would bring enough, the sale of it would entitle Dr. Cogswell to receive $6,000 which was expected to come from the proceeds of the sale. If the use of these proceeds for the payment of debts would leave a sum insufficient to pay the $6,000, Dr. Cogswell might contend that the other part of the house would need to be sold to make up to him this sum. The fact that under the will he is entitled to receive $6,000 from the proceeds of this sale well may be considered by the plaintiff in determining whether to apply to the Probate Court for the sale of both parts of the house.
Under the trust one third of the net income of the premises on Beacon’ Street-is to be paid to Dr. Hall during his natural life. This indicates an intention of the testatrix that this property should be held and used to produce income during the joint lives of Dr. Cogswell and Dr. Hall.
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Knowlton, C. J.
These three suits in equity were consolidated and heard together before a single justice, and reserved for the consideration of the full court. The last of them, which we will consider first, is a bill by an administrator de bonis non with the will annexed of Hannah E. Cogswell, late of Brookline, deceased, asking for instructions in the settlement of her estate. It is necessary to sell real estate to pay debts and charges of administration, and the first question is whether the legacy to Helen R. Robinson, the sister of the testatrix, of “ all moneys or estate that may be recovered in the action of law . . . against one Francis Fisher Robinson and one Charles C. Morgan, named as trustee in said action,” which moneys amount to $984.60, collected by the plaintiff as the proceeds of the judgment obtained in the action, is to be paid in full to the legatee or to be diminished by way of contribution for the payment of debts.
We are of opinion that this was intended by the testatrix to be a specific legacy, and therefore not subject to be diminished by way of contribution so long as there is property devised generally sufficient for the payment of the debts. R. L. c. 135, §§ 26, 27. Blaney v. Blaney, 1 Cush. 107, 115. This sum, with any interest that has accrued thereon, should be paid to Helen R. Robinson.
Another question is whether the mortgage of $5,000, which is an incumbrance outstanding upon a part of the real estate, is a debt of the estate to be paid by the plaintiff. Upon the facts stated, this debt appears to be barred by the special statute of [84]*84limitations. It is therefore not a debt to be paid by the plaintiff, but is an incumbrance upon the real estate, subject to which the property will be sold if a sale of this lot is made by the plaintiff.
The question most discussed among the parties relates to the request for an instruction to the plaintiff as to which of the parcels of real estate he first shall sell or mortgage,, and which of the parcels he thereafter shall sell or mortgage if it becomes necessary to sell a second parcel. The power to authorize such a sale, of real estate resides in the Probate Court, under the R. L. c. 146, §§ 6-8. In a proceeding of this kind this court cannot direct or control the Probate Court in its action under these sections. All parties interested join in the prayer of the plaintiff for instructions on this point, and we think the court properly can instruct him" as to his action in making an application to the Probate Court. The decision on his application will depend upon the view of that court, dealing with the case as it then is presented.
The testatrix made her son and her brother executors of her will. After providing for the payment of her debts and funeral expenses, and for the disposition and care of her cemetery lots, and after giving to her sister her wearing apparel and the specific legacy already referred to, she gave to her son Dr. Cogswell and her brother Dr. Hall, “ their heirs and assigns in fee simple,” all her real estate. She then made numerous provisions as to the management and disposition of it, and as to payments to be made from the proceeds of it; Although she did not use the word “trust” or “trustee,” we think the effect of the will is to give to Dr. Cogswell and Dr. Hall the legal title to all this property, to be held in trust to manage and finally dispose of it according to the directions subsequently given in the will. In Hall v. Cogswell, 183 Mass. 521, 523, it is said that the clause giving Dr. Cogswell $6,000 out of the proceeds of the sale “ creates a trust or a charge on these two houses.”
The double dwelling house numbered 9 and 11 Centre Street, built by the testatrix, is treated by her in different particulars as one estate. She provides that it shall not be sold until the expiration of five years after her decease, and she refers to “ the [85]*85balance of the money or estate remaining from the sale of said dwelling houses.” In reference to the use to be made of them so long as they remain unsold she considers them separately. Number 9 is to “ be used, occupied and enjoyed as and for a home for said Dr. Charles F. Cogswell, Dr. Newbert J. Hall, Helen R. Robinson and her son, John Brooks Robinson, so long, as said Dr. Cogswell and Dr. Hall shall own the same.” These persons are her son, her brother, her sister and her nephew. She evidently contemplated a use of the property by these relatives as members of one family, living harmoniously together. The property was to be “ enjoyed ” as a “ home.” For reasons which do not fully appear, these persons fell into controversy, and litigation has been going on among them ever since the death of the testatrix, which occurred more than six years ago. Three times before the present suits were brought this litigation has been before the full court. See Hall v. Cogswell, 183 Mass. 521; Cogswell v. Hall, 183 Mass. 575 ; Cogswell v. Hall, 185 Mass. 455. Dr. Cogswell ceased to occupy the house in July, 1900, and John Brooks Robinson gave up his residence there in 1905, and subsequently released and conveyed all his right, title and interest in the estate to Dr. Cogswell. The single justice found that, as long ago as July, 1900, the counsel of Dr. Hall addressed a letter to the counsel of Dr. Cogswell, telling him that Dr. Cogswell would be charged for lodging and care and attention in the house from the expiration of forty days after the death of the testatrix, and stating other things indicating an attitude of hostility in reference to the rights of the parties under the will. The judge also found that Dr. Cogswell left the premises and remained away in consequence of the letter and the strained relations which had arisen between the parties over the settlement of the estate. It is very plain that these beneficiaries cannot occupy and enjoy the house as a home in the way intended in the creation of this part of the trust. It is contemplated by the will that the trustees might sell the property at any time after the expiration of five years. We see nothing in the existing conditions which should make the plaintiff hesitate to apply for a license to sell this part of the house for payment of debts and charges of administration. No reason appears why the plaintiff should not apply for leave to sell the [86]*86other part of this double house for the same purpose, if, as seems likely, the sale of the first would not bring enough to pay debts and charges of administration. Even if it would bring enough, the sale of it would entitle Dr. Cogswell to receive $6,000 which was expected to come from the proceeds of the sale. If the use of these proceeds for the payment of debts would leave a sum insufficient to pay the $6,000, Dr. Cogswell might contend that the other part of the house would need to be sold to make up to him this sum. The fact that under the will he is entitled to receive $6,000 from the proceeds of this sale well may be considered by the plaintiff in determining whether to apply to the Probate Court for the sale of both parts of the house.
Under the trust one third of the net income of the premises on Beacon’ Street-is to be paid to Dr. Hall during his natural life. This indicates an intention of the testatrix that this property should be held and used to produce income during the joint lives of Dr. Cogswell and Dr. Hall. While we have no doubt of the power of the Probate Court to authorize the sale of this property as well as the other if needed for the payment of debts, this provision, as well as the provision for the investment of the proceeds of the sale of the Centre Street houses in other real estate in Brookline or Boston during the lives of all these beneficiaries, shows an intention on the part of the testatrix that the property on Centre Street might be sold at any time after the expiration of five years, and that the property on Beacon Street should be held so long as Dr. Cogswell and Dr. Hall both live. We therefore instruct the plaintiff that it is his duty first to apply for leave to sell or mortgage the property on Centre Street.
It does not appear from the pleadings and agreed facts whether the interests of the beneficiaries will be promoted by selling both parts of the house on Centre Street at the same time, or by selling only one, provided a sale of one would enable the plaintiff to pay all debts and charges of administration. We therefore are unable to instruct the plaintiff on this point. We see no reason why he may not properly make his application in either form as seems to him best.
If there is any surplus in the plaintiff’s hands after paying [87]*87debts and expenses out of the proceeds of the sale of real, estate, he will of course hold it to be disposed, of under the will. At this stage of the proceedings we cannot properly instruct him further on this point. How much he will hold, if anything, and what the conditions may be at that time, we do not know. The trust calls for the maintenance of Helen R. Robinson during her natural life. There is also a provision for an investment of proceeds in real estate to be occupied and enjoyed by the four beneficiaries as a home. Whether the conditions hereafter will be such that this part of the trust can be executed in accordance with the intention of the testatrix we cannot tell.
Upon the facts agreed, Helen R. Robinson, the plaintiff in the first case, is entitled to receive from this property such sum as is necessary to secure for her a suitable and comfortable maintenance during her natural life. It is the duty of the defendants Cogswell and Hall, as trustees holding the property, to provide this maintenance. If they fail to perform this duty the plaintiff can have the trust administered by others who will have regard to her rights. Her case will stand for hearing before a single justice upon an application for an amendment, or otherwise, as she shall be advised.
Upon the acts now appearing the court cannot decree relief to the plaintiff Cogswell in his suit against Hall and others. As it is likely that proceedings by the administrator to obtain money for the payment of debts will materially change the existing conditions, this case may stand for such action, if any, before a single justice as the rights of the parties demand.
So ordered.