
    Job Dean versus Lazel Dean.
    An administrator of one dying intestate cannot sell the real estate, of which his intestate died seised, for any purpose but the payment of debts due from the intestate at the time of his death.
    In this action the plaintiff, as he is administrator of Anna Dean, deceased, demands possession of a certain parcel of land in Jtay?iham, and says that his intestate, while living, and within thirty years last past, viz., on the 28th day of April, Anno Domini 1798, was seised and possessed thereof, and afterwards, in the same year, died so seised; and the plaintiff further says that he now ought to be in the possession thereof, to administer the same according to law, the personal estate of the intestate being insufficient to pay her debts, legacies, funeral charges, and charges of administration; but the defendant hath since unjustly, and without judgment, entered into the demanded premises, and deforced the plaintiff therefrom, and still unjustly holds him out.
    Upon the general issue pleaded, a verdict was rendered for the plaintiff, by agreement of the parties, subject to the opinion of thé Court on these facts, viz., that the plaintiff’s intestate left sufficient personal estate to pay all debts due from her at the time of her decease, and the charges of her funeral; that the plaintiff hath settled a second administration account, which is in the case ; if the Court are of opinion that the plaintiff, upon these facts, can maintain this action, judgment is to be entered accord- [ * 259 ] ing to the verdict; otherwise the verdict is to be set aside, and the plaintiff to become nonsuit.
    By the second administration account, referred to in the above agreement, it appears that a balance of 29 dollars, 56 cents, remained due to the plaintiff, in his capacity of administrator: the principal part of the plaintiff’s charges against the intestate’s estate consisted of labor and expenses about one or more lawsuits with the present defendant.
    
      Sprout, for the plaintiff,
    contended that the real estate of deceased persons being by our statutes liable to respond for debts and legacies, the administrator must have a right to the possession for those purposes. He cannot sell such estate unless he is first possessed of it. Although there is no general provision making real estate liable foi the charges of administration, perhaps such charges may be considered as included in the “ incidental charges” mentioned in the statutes relating to this subject; and in the statute of 1788, c. 51, <§> 2, authorizing executors and administrators to sell certain specified real estates, the proceeds of such sale are expressly appropriated, among other objects, to pay the charges of administration.
    If administrators have not this right, they are liable to great suffering without remedy. The personal estate of the deceased may consist wholly of debts due. The expense of collecting them from perverse and obstinate debtors (as was the case of this estate) may equal or exceed the amount collected. If the administrator does not collect them, he will be charged with waste; if he enforces the collection by suits at law, he must pay the expenses of such suits out of his own pocket, unless he has a right to reimburse himself from the real estate.
    
      Tillinghast, for the defendant,
    insisted that the “ incidental charges,” mentioned in the statutes, authorizing the sale of land by executors and administrators, applied only to the charges attending the sale; and this had always been so understood. As to estates mortgaged to the intestate or testator, or levied upon by the executor or administrator, the statute, which directs their appropriation, expressly provides that they shall be considered as personal estate.
    * 260 ] * When an executor or administrator has legal authority to sell land belonging to his testator or intestate, the surplus, if any, goes to the heir. But in the present case the land is in the hands of a bond fide purchaser. It is worth 1000 dollars. The plaintiff’s whole balance is under 30 dollars. The most flagrant injustice would be the consequence of the plaintiff’s recovering in this action.
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

The verdict in this cause is taken for the plaintiff by consent, subject to the opinion of the Court on certain facts agreed by the parties.

The plaintiff sues in this action as administrator of Anna Dean, and in his count declares that the said Anna died seised in fee simple of the demanded premises, within thirty years, not leaving personal estate sufficient to pay her debts and legacies, together with the funeral charges, and the expenses of administration, for which reason he ought to have possession of the premises, to administer them according to law; and he complains that the defendant deforceth him.

On the trial, on the issue of not guilty, the plaintiff gave in evidence his second administration account, settled and allowed in the Probate Court, on which he relies, as sufficient evidence to maintain the issue on his part; and whether it be sufficient evidence is the question submitted to the Court.

Whether an administrator can in any case maintain a real action, to obtain the seisin or possession of the lands of the intestate, which he did not claim as mortgagee, is a question admitting some doubt, notwithstanding a long practice may be urged in favor of the action; as the several statutes by which the real estate tf any person deceased intestate, is made assets in the-hands of his administrator, may be construed to give him only a naked authority to sell, the estate in the mean time descending to the heirs of the intestate. But in this action we do not think it necessary to decide this question . We shall give our opinion on the assumed ground that an administrator may recover, in a real action, lands which are by law to be administered by him as legal assets.

Our inquiry is, therefore, confined to the plaintiff’s second administration account, as the only evidence in the case to * prove the plaintiff’s right to administer the demanded [ * 261 ] premises as assets. There are four statutes relating to this subject. In the statute of 1783, c. 36, directing the descent of intestate estates, it is enacted in the third section that the real estate shall stand chargeable with all the debts of the deceased, over and above what the personal estate shall be sufficient to'pay. In the eighteenth section of the statute of 1783, c. 24, directing the manner of devising lands, &c., it is provided that when any estate shall be taken in execution for the payment of the testator’s debts, or shall be sold therefor as the law provides, the other devisees or heirs may be compelled to a contribution by a suit at law. The statute , directing the settlement of the estates of deceased persons, in the first section provides that when the personal estate of the deceased shall be insufficient to pay his debts and the legacies given by him, the Supreme Judicial Court, or the Court of Common Pleas, may license the executor or administrator to sell so much of the real estate of the deceased as shall be necessary to satisfy the debts which the deceased owed at the time of his death, and the legacies bequeathed in his last will, with incidental charges. And m the seventh section of the same statute it is enacted that the real estate of any person deceased shall be liable to be taken in execution upon judgments against executors and administrators for the proper debts of the testator or intestate.

From a consideration of all these statutes, it is manifest that the lands of any person deceased intestate are not assets to be administered by the administrator, but when there is a deficiency of personal estate to pay the debts which he owed at his death; and that the administrator cannot administer on the lands but by selling them according to a license duly granted, and by appropriating the proceeds to the discharge of the intestate’s debts . The Court, however, in granting thé license, may authorize him to sell lands also sufficient to pay the incidental charges of sale, it being an expense he must necessarily incur in pursuing his authority. In levying an execution on the lands of an intestate, to satisfy a debt which he owed, the judgment creditor may satisfy the [ * 262 ] * costs of suit out of the lands. With the exception of these two cases, the laws have made no provision for the appropriation of the lands of an intestate, but to supply the deficiency of his personal estate for the payment of his debts.

This opinion is supported by the provisions of the statute of 1788, c. 51. By this statute, when lands recovered by an administrator on foreclosing a mortgage, or taken by execution, are afterwards sold by license, the proceeds shall be assets, not only for the payment of debts, but also for the charges of administration. For the lands being received in satisfaction for money due the intestate, when they are turned into money, it is proper that the proceeds should be appropriated as personal assets of the intestate. •

In the case at bar the deceased died intestate; and unless it appears from the administration account that there is a deficiency of the personal estate to pay her debts, it is very clear that the administrator can have no claim to administer on her lands. In examining this account, there is a credit to the estate of 181 dollars, 49 cents, personal estate, being the balance of the first administration account. And the only charge against the estate of any debt paid, is hazel Dean’s execution, amounting, with the fees, to 25 dollars, 9 cents. The other items appear to be the expenses of lawsuits, not taxed in the bills of costs, in which suits the plaintiff voluntarily engaged, and by the result of which the estate has derived no benefit. From this examination, it appears that the lands of the intestate are not wanted to satisfy any of her debts, but merely to reimburse the administrator his own expenses; and the conclusion is necessary, that he has no claims on her lands to administer them for any purpose authorized by law.

According to the agreement of the parties, the verdict must be set aside, and the plaintiff be nonsuit.

In forming our opinion, we have supposed that if an administiator can maintain an action to recover possession of lands to administer them, the settlement of a proper account in the Probate Court may be sufficient evidence of his right to administer on the lands of the deceased . But we all very much doubt whether such an account is sufficient evidence; and we are strongly inclined to think that he should *go further, and show a regular [ * 263 license to sell real estate. As he cannot administer the lands, but by sale pursuant to a license, it seems unreasonable to permit him by suit to disturb the lawful possession of the tenant until it is ascertained by the license that he may lawfully sell the lands when recovered .

Plaintiff nonsuit. 
      
       [Vide Drinkwater vs. Drinkwater, 4 Mass. 354.—Willard vs. Nason, 5 Mass 420.—Hathaway vs. Valentine, 14 Mass. 500.—Gibson & Al. vs. Farley, 16 Mass. 280 But see the revised statutes.—Ed.]
     
      
       1783, c. 32.
     
      
      
        [Drinkwater vs. Drinkwater, 4 Mass. 354.—Mitchell vs. Lunt 4 Mass 464 —But see the revised statutes.—Ed]
     
      
       [See the revised statutes.—Ed.]
     
      
       [Since the above decision, the authority of the administrator to sell has bees enlarged, so as to embrace the charges of administration.—Ed.]
     