
    Samuel P. P. Fay, Judge, &c. versus Lawson Valentine et al.
    
    in a ‘ministra :cr s not required to give a new bond to the judge of probate, upon being licensed to sell so much only of the real estate of the intestate as shall be sufficient for the payment of debts, with incidental charges.
    If such a bond is legal, still it is not a probate bond, and therefore an action upon it cannot be commenced originally in the Supreme Court.
    This was an action of debt brought originally in this Court, by the plaintiff, in his capacity of judge of probate, upon a bond made by the defendants, dated October 27, 1824. The condition of the bond was, that Valentine, who, as administrator, had obtained license to make sale of real estate of his intestate for the payment of debts, should apply the proceeds of the sale (or so much thereof as should be necessary) for that purpose, and for the overplus, if any, should be responsible to the lawful heirs of the deceased ; and should render a true account of his proceedings to the judge of probate.
    The defendants pleaded, that the cause of action, if any, is originally within the jurisdiction of the Court of Common Pleas, and not within the original jurisdiction of this Court.
    The plaintiff demurred generally.
    
      Sewall, in support of the demurrer.
    The only question is, whether this bond is a probate bond, within the meaning of St. 1786, c. 55, § 3, which provides, that all suits in the name of any probale judge, “ upon a probate bond of .any kind, shall be originally commenced in the Supreme Judicial Court.” The defendants will say that this is not a probate bond, because the judge of probate is not required by St. 1783, c. 32, § 1, or by any statute, to take a bond upon the sale of land for the payment of debts, except where it is expedient to sell more than is necessary for that purpose. We contend that it is sufficient, if he is authorized to take such a bond. And further, that it is not only customary, but necessary to take the bond, in order to secure the due appropriation of the proceeds ol the sa^e> That is not provided for by the administration bond, whether in the old form, or in the form prescribed by St. 1817, c. 190, § 14; which last requires real estate to be inventoried. [.Parker C. J. Formerly the administration bond did not cover the proceeds of land sold under a license, for the payment of debts, but I think the statute of 1817 alters the law in this respect.] The object of inventoryiag the real estate must be, to give information to creditors, of the amount of the intestate’s property ; but the administrator has no more to do with the land than he had before. There is no provision in the administration bond, that he shall account for real estate. White’s View of the Jurisdiction &c. of Courts of Probate, 108; Hasty v. Johnson, 3 Greenl. 286; Nelson v. Jaques, 1 Greenl. 139; Knox v. Jenks, 7 Mass. R. 488; Freeman v. Anderson, 11 Mass. R. 190; Henshaw v. Blood, 1 Mass. R 46.
    
      
      Oct. 15ZA
    
      
      Osgood, contra,
    
    insisted that a probate bond is one whicn must by law be given to the judge of probate, and which he is authorized to take virtute officii; that the bond in the present case was not required by law ; and that since the St. 1817, c 190, a creditor has his remedy upon the administration bond in case the administrator neglects to apply to the payment of debts, the proceeds of land sold under a license for that purpose. Baylies v. Chace, 1 Pick. 230; Thomas v. White, 12 Mass. R. 367; Hasty v. Johnson, 3 Greenl. 286; Nelson v. Jaques, 1 Greenl. 144 ; Newcomb v. Wing, 3 Pick 168.
    
      Oct. 17th
    
   Per Curiam.

The bond in question is not required by the statute. It may be a legal bond, but a suit upon it should be commenced in the Court of Common Pleas, and not in the Supreme Court.

Plea adjudged good. 
      
       See Revised Stat. c. 63, § 2; c. 71, § 6.
     