¶1The bill alleges that the defendant as trustee, having authority under the will to sell real estate, made an agreement with the plaintiff to sell certain real estate “ subject to the approval of the Probate Court for Suffolk County and if license to sell cannot be obtained, the deposit shall be returned and the agreement cancelled; ” that a petition for such license was filed, a citation was issued and on the return day no one appeared to oppose the granting of such license, but that the defendant appeared and “represented to the court that, since filing said petition, he had received” a more advantageous offer than that set forth in the petition, whereupon the court suggested an amendment substituting the higher offer, and this was done; and that “the defendant, by his own said conduct, prevented himself from obtaining a license to sell said estate according to the terms of said agreement with the plaintiff.” The prayer is for specific performance and for a decree directing the defendant to procure a license unless opposition is made thereto, to require him to make good to the trust personally the difference between the agreed price and the subsequent offer, and for other relief.
¶2It is manifest that the condition of the agreement, upon which *294alone the obligation to convey should become operative, has never been performed. The court never granted such a license. It was the plain duty of the defendant in the execution of his trust to report to the Probate Court the fact that he “had received” a higher offer for the real estate than the price named in the agreement. He was in no way responsible for the action of the court. The record is at the opposite pole from showing any actual or constructive bad faith on the part of the trustee. The circumstance that the defendant had authority under the will to make the sale without a license does not affect the validity of the condition in the agreement as to procuring a license.
¶3Decree dismissing bill affirmed with costs.