
    Samuel Freeman, Judge, &c., versus Mary Anderson and Others.
    A bond given by an administrator, for his faithful administration, &c., does not cover the neglect of the administrator to procure a license for the sale of the real estate of his intestate for the payment of his debts.
    Debt on a bond, dated October 3, 1804, made by the defendants to the plaintiff, as judge of probate for the county of Cumberland, conditioned for the said Mary Anderson’s faithful administration of the estate of Edward Anderson, deceased, intestate.
    The defendants pray oyer of the bond and condition, and plead in bar of the action, that the said Mary, from the time of making the bond, has well and faithfully observed, performed, and kept all and every part of the things in the condition of the said writing obligatory on her part to be observed, &c.
    The plaintiff replies that, at the S. J. Court, May term, 1808, at Portland, one Richard Manning recovered judgment against the goods and effects of the said deceased in the hands of the said Mary, for the sum of 107 dollars 93 cents debt or damage, and 20 dolíais 81 cents costs; and sued out his execution thereon, and delivered the same to Stephen Swett, then a deputy sheriff for said county, on the 1st of October, 1809, to be duly executed; and the said Swett, on the 16th of the same October, made his return on the said execution, that, pursuant thereto, he had made diligent search for the goods and chattels of the said Edward Anderson, deceased, in the hands of the said Mary Anderson, [*191 ] * administratrix as aforesaid, and elsewhere, and that he had not been able to find any of the said goods and chattels, the said Mary having wasted the same ; and the plaintiff on the same day demanded of the said Mary the sums aforesaid, and she refused and neglected to pay the same, and to show goods or estate of said deceased, for the purpose of paying and satisfying the same.
    The defendants (protesting that the said" Manning did not recover judgment, &c., nor sue out his execution, &c. ; that Swett was not a deputy sheriff, and did not make return, &c., and that the plaintiff did not demand, &c.) rejoin that the said Mary has, in the due course of administration, fully administered and accounted for all the goods and chattels, rights and credits, which were of the said Edward at the time of his death, which have ever come to the hands of the said Mary to be administered; and that she has not, n >r had on the day of the purchase of the plaintiff’s writ, nor at any time since, any goods, &c., which were of the said Edward at the time of his decease, in her hands to be administered. A nd they further aver that the real estate, of which the said Edward died seised, is sufficient to pay all the debts which the said Edward owed at the time of his decease, which real estate remains for the purpose of paying said debts.
    To this rejoinder the plaintiff demurs generally, and the defendants join in demurrer.
    The cause was argued, at the last May term in this county, by Whitman for the plaintiff, and by Mellen and Longfellow for the defendants.
    
      Whitman
    
    relied on the statute of 1783, c. 32, § 8, providing that if any administrator shall neglect or unreasonably delay to raise money out of the intestate’s estate, by selling the real estate, (if need be, and he can obtain license to sell the same,) and by such delay shall subject the intestate’s estate to be taken in execution, the same shall be deemed waste and unfaithful administration in such administrator; also the statute of 1786, c. 55, § 2, providing for *an action upon the administration bond, [ * 192 ] for the benefit of a creditor, who has had his debt or damages ascertained by judgment of court, and has made a fruitless demand on the administrator; all which prerequisites are alleged in the replication in this case. The administratrix has then been guilty of waste, and the case is clearly within the condition of the bond.
    
      Mellen and Longfellow, for the defendants,
    insisted that the administration bond had no relation to the real estate of the intestate When she obtains a license to sell the real estate, the Court requires a new bond, with sureties for her fidelity in the sale, and for her accounting for the proceeds. It has been decided by this Court that an administrator is not bound by his bond to inventory real estate.  In the case cited, the Chief Justice, said, “The administrator, as such, has nothing to do with the real estate; he cannot even enter upon it, or in any manner intermeddle with it, except where there is an insufficiency of the personal estate to pay the debts of the deceased: when that happens, he has a right, upon being duly licensed, to sell and convey real estate by deed.” If the sureties on the administration bond are not liable for the pro ceeds of land, when sold by license, it would be strange, indeed, if they were liable to the same amount, because the administrator neglects to obtain a license to sell it.
    The action having been continued for advisement to this term,
    
      
       1 Mass, Rep. 48, Henshaw vs. Blood & Al.
      
    
   The Court

now observed that, the plaintiff having admitted, by his demurrer, that the personal, effects of the intestate have been fully administered, the only question remaining in the action is, whether the defendants have subjected themselves to a forfeiture of their bond, by the neglect of the administratrix to make application for a license to sell the real estate of her intestate for the payment of his debts.

We should have preferred to have met this question on a hearing in equity. We recollect a case that was before us [*193] * on such a hearing, after the forfeiture of the penalty had been adjudged. The estate in that case was insolvent ; and the administrators had paid more money than the whole personal property left by the deceased amounted to ; and it was determined that the sureties were not liable, upon the administration bond, for the proceeds of the real property, which had been sold by the administrators, under a license obtained for that purpose, and without giving a new bond to account for the proceeds of such sale. In the case at bar, we think the bond cannot be extended to cover the neglect of the administratrix to procure a license for the sale of the real estate; and we shall give judgment for the defendants upon the demurrer, unless the plaintiff, believing that he has merits, and that, on a trial, he can show an improper use or waste, by the administratrix, of assets that have come to her hands, should move to withdraw his demurrer, and go to the jury with the cause.

The plaintiff thereupon moved for leave to withdraw his demurrer, and plead to issue; which the Court, after consideration, refused.

Rejoinder adjudged good. 
      
      
         Vide Newcomb, Judge, &c., vs. Wing, 3 Pick. 168.
     