
    Ward N. Boylston, Administrator, versus Reuben Carver.
    Under the statute of 1788, c. 51, an executor or administrator to whom land is set off on execution, takes an estate in such land in trust for the heirs, Sz.c., and neither the legal estate nor the possession vests in the heirs until the land is apportioned and distributed in the probate office, or until the administration has been settled, or it is ascertained that the land will not be wanted to discharge debts, &c.; and the administration bond is security for the faithful administration of such land, it being only a substitute for money due to the testator or intestate; and the executor or administrator may maintain an action for the same land against a stranger in possession.
    This was a writ of entry, and was tried upon the general issue before Parker, J., at the sittings after the last October term in this county.
    The report of the judge states that the demandant counted on his own seisin as administrator of the goods and estate of Thomas Boylston, late of the city of London, merchant, deceased, to recover seisin of certain lands in Weston, in this county, which were a part of the real estate, of which Moses Gill, late of Princeton, Esquire, died seised, and which had been appraised and set off to the demandant in part satisfaction *of an execution [*599] issued upon a judgment recovered by him in his said capacity of administrator, against the goods and estate of the said Gill; the same land having been sold by the executor and residuary devisee of the said Gill, before the said judgment was recovered.
    
      In support of his action, the demandant offered in evidence an authenticated copy of said judgment, execution, and extent, and also certain deeds, documents, and papers, tending to prove an assignment of all the estate, rights, and credits, of the said Thomas Boylston, in his lifetime, he being then a bankrupt, to his creditors; and the appointment of certain trustees to manage and dispose of the same ; also certain other deeds and papers, showing, among other things, a transfer to the defendant of the debt due from the said Moses Gill to the said Thomas Boylston, upon which the said judgment wac recovered. A copy of the last will and testament of the said Thomas Boylston, proved according to the statute of 1785, c. 12, was also offered by the demandant.
    The counsel for the tenant objected, at the trial, that an administrator cannot maintain an action to recover seisin of lands, without showing that such possession is necessary, in order that the lands may be disposed of to pay the debts and legacies of the intestate, such necessity being alleged in the writ, but no evidence of it offered.
    The parties being mutually desirous to have the question decided by the whole Court, all the evidence offered by the demandant was rejected, and a verdict returned for the tenant, subject to the opinion of the Court as to the competency of the demandant to maintain this action, under the special circumstances of this case appearing from the deeds, documents, and papers, offered in evidence as aforesaid.
    The cause was continued to the present term, and was now argued by Bigelow and Jackson for the demandant, and Ward and G. Blake for the tenant.
    
      Jackson.
    
    The demandant has a right, as administrator, to maintain this action, where he has levied an execution upon the real estate of the debtor of the deceased, and is afterwards wrongfully disseised. In every such writ of entry, the gist of the action is the unlawful entry of the tenant. The principle is the same [ *600 ] in the other class of writs of entry, * where the entry is not tortious, but made under a defective title ; as in dum fait infra atatem, where the general or most common issue of course is, whether the demandant was of full age at the time of the demise.  So, in dum fait non compos, the issue is whether the ancestor was of sound mind at the time of the grant.  The writ of ad terminum quiprateriit is another instance.  The object, in short, of every writ of entry is to disprove the tenant’s title by showing the unlawful defective commencement of it.
    The material fact, then, in the present suit, is the unlawful entry by Carver, and the ouster of the demandant. To prove his seisin, he shows his execution and the levying of it upon the demanded premises, being part of the estate of which Gill, the debtor, died seised. This gave him the actual seisin and possession,  and of course put Carver out of possession. They could not both be seised at the same moment.  The judgment creditor’s being an .idniinistrator can make no difference ; for the expression in the statute is, “ when any person who shall obtain a judgment and execution,” &c.
    The statute of 1788, c. 51, enacts expressly that an administrator levying an execution in this manner shall be “ seised and possessed ” of the lands, &c. And in the case of Gore vs. Brazier, 
       it was decided that such a levy by an administrator gave him the actual seisin and possession of the lands, and did of course put out the former possessor. If he was wrongfully ousted, the law has provided him several remedies. He might enter without process, or sue his writ of entry, or resort to his writ of right, if he chose. In this case, Carver preferred the first, and, accordingly, made his entry upon the land ; and the question now is, Had he a right so to enter ?
    The demandant having shown his seisin by the levying of the execution, the onus is thrown on the tenant, to show his right. For when the tenant entered upon the demandant’s possession, he became an actor, and it can be no hardship * upon [ *601 ] him to be called upon to show what right he had so to enter. But he does • not even pretend such right, and his whole defence is, that certain third persons, strangers to him, had that right.
    It will not be pretended that the demandant had not, at a certain point of time, the actual and lawful seisin and possession of the premises. The two cases before cited, and the plain letter of the statute, establish this position. And if he was rightfully seised, it does not lie in the mouth of Carver to say that he entered in alieno jure. For if he was seised but for a moment only, that is sufficient against a stranger.
    But it is not true that he was seised to the use of others, in the technical sense of the expression, so that the use was executed by the statute of uses, and the estate vested in others. Before the statute of 1788, c. 51, an administrator could levy on real estate ; but it was generally held that by so doing he became himself the owner of the land, and he was held to account for the amount of the debt.
    It is true that statute provides that when land is so set off, the administrator shall be seised to the sole use and behoof of the widow, &c. By the word use, tne legislature must be understood to mean 
      trust; and, accordingly, a chancery power is given to the Probate Court to compel the execution of that trust, which depends on future and contingent events. The words use and trust are not unfrequently used thus indiscriminately;  and in construing statutes or conveyances, the Court will give them such interpretation as will effectuate the intention of the legislature or parties.
    Other parts of the statute show clearly that the legislature intended to give the administrator an actual, physical possession, and not a mere instantaneous seisin, which terminates the moment it commences. Thus, by sect. 4, if the mortgagor, or judgment debtor shall redeem, the administrator, &c., shall receive the redemption money, and reconvey. And in such case, the party redeeming will be entitled to an account of the rents and profits. But how is the administrator to account, unless he is seised ? The third [*602] section enacts that * the administrator, &c., shall be seised and possessed, &c. These words very strongly support our construction ; and the case of Gore vs. Brazier proves that by them is meant an actual possession. The same section provides that the judge of probate may make distribution of this estate, when it is ascertained that it will not be necessary for the payment of debts, &c. But until this fact is ascertained, the administrator is'“ seised and possessed ” of the whole estate, in trust for those who shall be designated by the judge of probate.
    The statute also enacts that the administrator, &c., “ shall have full right, power, and authority, to dispose and make sále of the estate, if necessary for the payment of debts,” &c. These expressions are quite sufficient, if the administrator holds the legal estate in trust for others. But if the legal estate were in others, stronger words would have been used. Thus, in statute of 1783, c. 32, § 1, where an administrator is authorized to sell the real estate of the deceased, which had of course descended to the heirs, it is expressed that “ he may make, sign, and execute, deeds and conveyances, &c., which shall make as good a title to the purchaser,” &c., “as the intestate could have made.”
    It may be added that the preamble of the statute of 1788 recites that it is to remove doubts, “ with respect to the extent of the right, title, and interest, ” of administrators in such cases. Whereas, on the other construction, the administrator has no estate, right, or interest, whatever: it is all transferred instantaneously to the cestui que use.
    
    But if the other construction be the true one, and the demandant had a right to retain the possession but an instant, his continuing the possession without right, is an injury only to the widow, &c., who might have a right to enter upon him. But Carver has no such right. It is believed to be a universal rule, that the tenant in possession, however imperfect his right may be, may always maintain that right, and hold the possession against a stranger.
    The difficulty here, as in the case of Gore vs. Brazier, seems to arise from a mistaken notion that the administrator was never seised; whereas the statute expressly says, he shall * be seised and possessed. And in that case, if Gore [ * 603 ] had a right to reenter and hold, the Court never would have assessed his damages at the value of the land.
    If it be said that the demandant has declared as administrator, and, therefore, his writ is wrong,—the answer is, that, notwithstanding the writ is so, yet, if he shows that he had any right, there can be no objection to the form under the general issue. The case in the Year Book, 49 Ed. 3, 22, is an authority to that purpose. That was a oui in vita, the allegation of the demandant was, that she had the land by the gift of A B. Per Cur. It goes only to the writ, and she may show a gift from C D.
    
      G. Blake, for the tenant,
    
    thought the cause lay in a very narrow compass, and must turn principally on the construction of our own statutes. It was, therefore, he thought, unnecessary to notice the nice and ancient learning which the counsel for the demandant had introduced into his argument. The demandant seemed to proceed upon a strange mistake, that it is incumbent on the tenant to make out his right.
    If this were a writ of entry in the per, the per and oui, or the post, and the tenant had pleaded the general issue non disseisivit, it would, in that case, be necessary for him to show his title ; because the plea of nul disseisin admits the entry of the tenant. But in all other cases, the demandant must show, not merely a possession, but. a right of possession likewise. And it would be a new and extraordinary case, if the tenant were held to show a rightful entry.
    Three things are necessary to a complete title to real estate, viz., possession, a right to the possession, and a right of property. And the tenant in possession may retain that possession until the demandant defeats the possessory title, by showing a right of possession in himself. For against strangers possession alone is a sufficient title.
    At the common law, an executor or administrator has no more right than an alien to maintain an action for the recovery of real estate. He cannot dispose of the land, nor even make a distress upon it. And by our own statutes, no authority is given to an executor or administrator to maintain an action real.
    
      [ * 604 ] * It is admitted that an officer did go upon the demanded premises, and there deliver a technical possession of them to the demandant. But it is contended that, as he had no right to put Carver out, he was not by that act deprived of the possession. For a mere unauthorized technical delivery of the possession, which Carver may elect to consider as a bare trespass, cannot disturb his seisin, or transfer it to Boylston.
    
    The question is, whether the mere taking possession under the execution does vest such a possession and seisin in the demandant, as to throw the burden of proof on the tenant, and compel him to show his title. If this be sufficient, the judgment creditor may show the officer any land, to which the tenant in possession has not a perfect title, and call it the estate of his debtor; and in this way he would always be able to satisfy his judgment, whether his debtor ever had any property or not.
    I am willing to consider the question to be as the counsel for the demandant has stated it, viz., whether Carver has disseised Boylston.
    
    For if Boylston ever had a seisin, I insist that it was only a seisin to certain uses pointed out by the statute, and could be but momentary ; for the use is executed the instant the seisin to uses vests.
    It is, therefore, impossible that he should be disseised, because there is no time in which a disseisin could be made.
    It is not incumbent on an administrator to inventory real estate.  And he has not even a right to enter upon it; nor has he more control over estate taken in execution, than any estate of which the deceased died seised.  It appears, then, that an administrator, as such, has nothing to do with the real estate, any further than certain statutes give him authority over it for some specific purposes. And it would be very inconvenient to let the administrator go on and recover such estate without his.giving bonds to account for it. The mischiefs are numerous and obvious.
    Taking the preamble of the statute of 1788 together, the intention of the legislature is evident. The object of the statute was to define the powers of executors and administrators, [ * 605 J * and to give further powers. It also provides in what manner land mortgaged or levied upon, should be disposed of. The mortgage being a security for personal estate, the heir, as such, could have no right to. the land mortgaged. But there is nothing in the statute which gives an administrator a right to maintain a real action.
    The word use in the statute must have its technical meaning To give it another would be contradicting an established rule in construing statutes, that words used in former statutes, the meaning of which has been fixed and settled, shall, when used in a latter one, be understood in the same sense.
    The object of the statute was to make the estate levied upon or taken by mortgage, a part of different fund from the rest of the real estate, and to prevent its going to the heir in the same way as the real estate, of which the testator or intestates died seised.
    The provision of the statute, that an executor or administrator shall receive the money paid to redeem land mortgaged or levied upon, has been urged as showing that the fee must rest in him, at least, until the time for redemption expires. Our statutes, in making real estates liable for the payment of debts, have disturbed many common law principles. In this case, the executor or administrator is made an agent or trustee for the heirs on one part, and for the debtor on the other; but it never was intended by the legislature to vest the fee in him. For giving him power to receive the redemption money by no means gives him power to sell. Much less does it authorize him to institute real actions.
    This case is very different from that of Gore vs. Brazier. There Gore voluntarily gave up the possession. But if he had chosen to retain it, we deny the right of the creditor to turn him out. In the case of Langdon vs. Potter & Al., the judgment creditor was not an administrator ; and it is, therefore, not applicable to the present case.
    The demandant having instituted his action as administrator, it is not competent for him now to change his ground, and claim inproprio jure. It is absurd to say that the long history he has given of his right as administrator shall be rejected * as [ *606 J surplusage. An administrator cannot join a count in his own right in an action which he brings as administrator; and an obscure authority from the Year Books of a decision, at a time when pleadings were viva voce, will have little weight now, when they are more formal, and formed with deliberation and study.
    
      Ward, on the same side,
    enforced the arguments urged by Blake, and said it was material to observe that neither the declaration, nor the report of the judge, states that there is any necessity to sell this estate for the payment of debts, &c. There is, therefore, no occasion for the administrator to possess himself of it. The estate of the deceased is committed to him, to be administered in the payment of debts ; and the law authorizes him to intermeddle with it no further than it is necessary for that purpose.
    It is a novel doctrine that it is immaterial how the demandant states his title. If it was well founded, the counsel for the demand-ant in this action, with his habits of research, would have produced some better authority in support of it than the ancient dictum he had cited. That dictum, so remote, so loose, and so much at variance with principle, can have but little weight.
    
      Bigelow, for the demandant, in reply.
    If the demandant cannot recover in this case, here is a right without a remedy. For it is certain that no other person but he can recover this property. The administrator had an unquestionable right to levy' his execution in the manner he has done. And it would seem very strange, if he had such right, that he has no right to maintain an action to recover the estate levied upon, and thus avail himself of the fruits of his levy.
    As to the form of the count, the demandant’s describing himself as administrator is immaterial. It is like the case of a plaintiff declaring upon a promissory note made to him as administrator; he may, if he please, describe himself as administrator, though he may also sue in his own right. The objection that there cannot be two counts, in different rights, in the same writ, will be of no weight in this case; because, as there can be but one count in a real action, this confusion cannot arise.
    [ *607 ] *It was objected that, if this levy can be supported, it will enable any judgment creditor to satisfy his execution by levying on any land, to which the title of the tenant in possession is defective, though never belonging to the debtor. It is a sufficient answer to this objection, that, should such an attempt be made to satisfy a judgment, the tenant in possession would bring his action of trespass against the creditor and officer, who could not justify, unless the estate levied upon was the debtor’s.
    If the demandant was in by disseisin of Thomas Boylston’s heirs, his seisin would be sufficient against all persons but the disseisees. The same would be the case, if an attorney were to take possession for himself, instead of his principal; his seisin would,be sufficient against every person but his principal. And in the present case, if the demandant has lawfully entered, that is sufficient to compel the tenant to show his title.
    On the whole, if the demandant did enter lawfully, he has a right to avail himself of the fruits of bis levy ; or, as was before observed, there is a right without a remedy. Before the statute of 1788, c. 51, an administrator thus stated unquestionably had a right; and since that statute, though it is provided that he shall be seised and possessed to the sole use and behoof of the widow', &c., yet he has a right, at all events, to the seisin against all the world; until some person shall appear entitled under the statute, in capacity of widow, next of kin or creditor.
    
      
      
        Rast. Ent. 248, b.
    
    
      
      
        Ibid. 249.
    
    
      
      
        Ibid. 256
    
    
      
      
        Stat. 1783, c. 57
    
    
      
      
        Langdon vs. Potter & Al., 3 Mass. Rep. 215
    
    
      
       3 Mass. Rep. 523.
    
    
      
      
        Gilbert on Uses, 194.
    
    
      
      
        Henshaw vs. Blood & Al., 1 Mass Rep. 43
    
    
      
      
        Prescott vs. Tarbel, Ibid. 204.
    
   The action was then continued nisi, and at the following March term at Boston, the opinion of the Court (except the Chief Justice, who did not sit in the cause) was delivered as follows by

Parker, J.

This action is brought to recover seisin and possession of the lands described in the writ, which were set off by the sheriff to the demandant, and seisin delivered to him in part satisfaction of an execution, which issued on a judgment recovered by him in this Court, August terzn, 1804, in his capacity of administrator de bonis non, with the will annexed of Thomas Boylston, against the estate of Moses Gill, deceased. The judgment, execution, and levy, are set * forth in the declara- [ *608 ] tian ; and possession is demanded against Carver, the tenant, who is alleged to have entered against law, and disseised the demandant.

All the evidence offered by the demandant to maintain his action was rejected by the judge at the trial, in order that the general question might come before the whole Court, whether this action can be maintained by the plaintiff in his capacity of administrator-, it not being shown, or offered to be shown, that the possession of the land was necessary, in order that the same might be sold to discharge the debts and legacies of the deceased testator.

The counsel for the tenant have insisted that an executor or administrator, as such, has no interest in, or power avez-, the real estate of the testator or intestate, so as to enable him to recover possession of it by an action ; but that the heirs of the deceased, instantly upon his death, became seised of his estate ; and if, by abatement or intrusion, they are prevented from entry, they, and not the administrator, are entitled to an action. And to maintain this position, they cited the case of Henshaw vs. Blood & Al., in this Court, in which it was decided that the condition of an administration bond is not broken by neglecting to return an inventozy of the real estate of the intestate.

There is no necessity of deciding, in this case, whether an adzninistrator can maintain an action for the recovery of lands, which his intestate owned in his lifetime, and of which he died seised, where the personal estate is insufficient to pay the debts of the deceased.

This case presents a very different question. The testator hez-e was never seised of, and had no claim to this land. After his death, the demandant, his administi'ator, instituted a suit to recover money due to the estate, and not being able to satisfy the judgment he recovered in money, or by the sale of chattels, he caused the execution to be levied on land, of which the debtor died seised. The demanded premises'were appraised and set off’ to him in part satisfaction of his execution ; and he was put into actual possession b] the sheriff; after which Carver entered and ousted him. Shall he be reinstated ? is the question presented in this action.

[*609] *The statute of 1788, c. 51, § 3, enacts “that, whenever any executor or administrator shall recover judgment for any sum of money, whereon execution shall issue, and lands, tenements, or hereditaments, shall be set off to the said exec utor or administrator, "in discharge of the said execution, the said executor or administrator shall be seised and possessed of the whole estate, in the lands, tenements, or hereditaments, so set off, to the sole use and behoof of the widow and heirs of the deceased intestate, or to the residuary legatee or legatees of the testator, as the case may be.”

It has been argued that the demandant in this action, when he caused the execution to be levied, and. was put into possession by the sheriff, became seised to the use of the heirs of his testator, and that by force of the statute of 27 Hen. 8. c, 10, for transferring uses into possession, which may be considered as the common law of this country, the possession of this land was instantly transferred from him to the heirs or legatees, so that the entry of the tenant never could be construed a disseisin of the demandant; but if a disseisin at all, was done to the heirs or legatees.

If this be the true construction of the statute, perhaps the argument is conclusive. But we are of opinion that, notwithstanding the words of the statute, declaring that the seisin of the administrator shall be to the use of the heirs and legatees, the true intention of the legislature, as expressed in the statute taking the whole of it together, was to vest a trust estate in the administrator, until certain things required by the statute shall have been performed by him ; and that neither the legal estate nor the possession vests in the heirs, until the same has been regularly apportioned and distributed in the probate office ; or at least until the administration has been settled, or other legal measures have been taken by the judge of probate to ascertain whether the land levied upon will be wanted to discharge debts and legacies, or to satisfy the expenses of the administration. And the administration bond is security for the faithful discharge of duty by the administrator respecting land so held by him, it being only a substitute for so much money, which would otherwise have come into his hands, and [ * 610 ] * which may still be converted into money, should there be a redemption by the debtor, or his legal representatives ; which distinguishes this case clearly from that of Henshaw vs. Blood & Al. the decision of the Court in that case being nothing more than, that the administrator is not accountable on his bond foi the real estate of the intestate, belonging to him in his lifetime, and of which he died seised.

That this is the true construction of the statute, is manifest from a recurrence to the fourth section. This section provides that if the person whose land has been levied upon, his heirs, executors, or administrators, redeem the same within the time therein limited, the executor or administrator shall be entitled to receive the money, and is authorized, empowered, and directed, to discharge the premises levied upon by release, quitclaim, or other legal conveyance. Now, this provision would be at best absurd, if the construction of the statute contended for by the counsel for the tenant should prevail ; for notwithstanding the administrator had been a mere conduit, to transfer the estate to the widow and heirs, who, according to this construction, must have the legal and actual seisin, all privity of estate being lost by the administrator the instant the seisin was delivered to him by the sheriff, yet, in case of redemption, the money is to be paid to him, and he alone is to execute the legal conveyance, which is to restore the estate to the debtor.

A similar provision in the same statute, relative to land mortgaged to the deceased, and taken possession of by his executor or administrator in virtue of a judgment recovered upon such mortgage after the decease of the mortgagee, still further shows that the legislature intended that the custody and possession of the land should be in the executor or administrator, until the estate should cease to be conditional. They are to obtain license to sell, if necessary for the payment of debts, legacies, annuities, or charges of administration ; they are to discharge the mortgage, in case redemption should be offered; and if neither of these things happen, the judge of probate is to distribute the same as personal estate. Unquestionably the administrator "is to hold the estate until his functions touching it are performed. And we cannot see how the widow or heirs in this case, or in the case of land delivered to the * executor or administrator, to satisfy a debt due to the [ * 611 ] estate, can have any right of entry, or can maintain any action for the possession, until distribution has been made by the judge of probate according to the statute.

The demandant, therefore, as administrator, had a right to show the judgment recovered by him, the execution, the levy, and seisin under it; and showing these would have legally maintained his action, unless a right to retain the possession had been shown by the tenant. As he was prevented from showing his title, the verdict must be set aside, and a new trial granted.  