This case was decided in June 1860.

The court do not sustain either of the objections made by the tenant to the validity of the license granted to the demandant to sell his testator’s real estate.

1. The petition for the license sets forth all that is required, by the Rev. Sts. c. 71, § 3, to be set forth, and in a form which was sanctioned by the decisions in Yeomans v. Brown, 8 Met. 51, and Norton v. Norton, 5 Cush. 524; and the judge of probate granted the petition, as he was authorized by the Rev. Sts. c. 71, § 10, on being satisfied, by proof that the representations therein made were correct. The position taken by the tenant, that the amount of the testator’s debts should have been determined, either by a judgment against the executor, (the demand-ant,) or under a commission of insolvency, is not supported by principle or practice. We recollect no instance, except that of Norton v. Norton, in which the amount of the deceased’s debts had been thus conclusively settled before the granting of the license.

2. This is a case in which the demandant’s administration bond is all that the law requires him to give. An additional bond is required only when a license is granted to sell more than is necessary for the payment of the debts of the deceased. Rev. Sts. c. 71, §§ 4—6. Fay v. Valentine, 8 Pick. 526.

3. There is no legal ground for the objection that the license does not conform to the petition and notice. It differs from the petition only by empowering the demandant to sell real estate sufficient to pay a somewhat larger sum than that which the petition represented to be the amount of the debts and charges of administration. There was the same difference between the petition and the license, in Norton v. Norton. And it is too plain for doubt, that a judge of probate is not restricted to the granting of a license to sell to the exact amount, neither less nor more, which the petitioner may represent to be necessary.

The case of Verry v. McClellan, 6 Gray, 535, cited for the tenant, is wholly unlike this. There the petition was for the sale of the whole of a specifically described portion of the deceased’s real estate, because a sale of a part thereof would greatly injure the residue. The notice that was ordered and *503given was to show cause why a license should not be granted for a sale of the whole of the deceased’s real estate. License was thereupon granted for the sale of the whole of his estate; which license was held to be irregular and void, because neither it nor the notice conformed to the petition.

4. It is objected that the other real estate of the testator, of which he died seised, should have been sold before this action was brought, so that the court might be able to determine how much, if any, of the estate of which he was disseised, the demandant can now recover. The answer to this objection is found in the opinion of the court, given by Mr. Justice Dewey, in Norton, v. Norton, before cited. He there says, that under the general order to sell so much land as will raise a specified sum, to pay the debts of the deceased, “ if the administrator brings his action to recover the real estate of the deceased, the effect of a judgment in his favor will be only to vest in him so much of the land as may be required to be sold to raise the necessary sum to pay the debts, as stated in his order; and that the object of the recovery being thus accomplished, the estate remaining will be the estate of the defendant. The court will order a qualified judgment in such cases, reciting the order of sale, and limiting the title to be acquired, under the judgment, to so much of the real estate described in the writ as shall be required to be sold at public auction, to raise the sum stated in the order of the probate court.”

In this action, where only the validity of the license is in question, the court cannot decide any points that may hereafter be raised concerning the validity of a sale under the license.

Exceptions overruled.