
    Oliver Prescott, Jun., & Al., Appellants, versus Mary Tarbell & Al., Administrators.
    Administration bond does not oblige tire administrator to inventory real estate Court cannot compel the execution of a trust. Real estate of a deceased person not inventoried by his executor or administrator, may be attached and taken in execution by the creditors. The Court will not inquire as to errors in fact which are not assigned in the reasons of appeal from a decree of the judge of probate.
    The appellees, who are the administrators of the estate of Samuel Tarbell, deceased, which had *been represen ted insolvent, exhibited to the judge of probate for this county their administration account for settlement and allowance, upon which the judge passed his decree; from which the appellants, who are creditors of the said estate, appealed, and filed the following reasons of appeal, viz.:—
    
      First. The intestate was the lawful owner, and lawfully seised and possessed, of the homestead farm, with the buildings thereon, where he lately dwelt, in said G., and whereon he died ; and although it appears that the personal estate of said deceased is not sufficient to pay and discharge the claims allowed by the commissioners thereon, but a great deficiency remains, which ought to be paid out of the real estate, and 'the said farm and buildings are the only real estate whereof the deceased died seised or was the owner, nevertheless the said administrators have not made sale of any part of said real estate for the payment of said debts, nor made application for license therefor, as by law they ought to have done.
    And, secondly, because said administrators, in their said account, have not charged themselves with the rent, use, or improvement of said real estate since tire death of said deceased, or any part thereof, as they ought to have done.
    And the parties now agreed that the judgment of this Court should be rendered upon the following state of facts, viz., That on the first day of April, 1791, James Prescott, Esq. was seised, in his demesne, as of fee, of the real estate mentioned in the reasons of appeal; and the same day, Samuel Tarbell, the deceased, (supposing himself an alien to the United States,) contracted with the said James Prescott for the purchase of the same estate., and paid him the purchase money therefor; but a deed thereof from said Prescott was made conveying the same to Aaron Dexter, Esq., *and, upon the same day, the said Tarbell took from said Dexter a bond whereby said Dexter bound himself, at all times, to permit the said Tarbell to use, occupy, and improve said estate, and at any time, upon request from said Tarbell, to convey the same estate to any person that he in writing should direct; that afterwards, viz., on the 11th December, 1795, said Dexter, by the direction of said Tarbell, conveyed by deed the same estate to Aaron Brown, Esq., and on the same day, in consideration of said conveyance, said Brown gave said Tarbell a bond in the penal sum of $ 10,000, with a condition of the following tenor, viz., “ The condition of this obligation is such, that whereas Aaron Dexter, Esq. did, by his deed bearing even date with these presents, convey to the said Aaron Brown, his heirs and assigns, forever, a certain farm situate in said Groton, containing seventy acres, more or less, and bounded as therein mentioned, which premises were intended to be conveyed as well for the use of said Tarbell, his heirs and assigns, as to secure to the said Aaron Brown the payment of all such sums of money as should at any time be due and owing by the said Tarbell to the said Brown; and the intent and meaning of the said parties to these presents is, that the said Tarbell shall, at all times hereafter, use, improve, occupy, and enjoy said premises, in such way and manner as he may think fit, but subject, however, to leave, quit, and resign up said premises to said Brown, his heirs or assigns, whenever he shall fail, for the space of one year, to pay to said Brown all such sums of money as may be due and owing by said Tarbell to said Brown, with the interest thereof, to be computed annually; which year shall commence from such time as said Brown, or his heirs or assigns, shall, by writing under his or their hands, given to said Tarbell, his heirs at * law, or devisees, or left on said premises for them, giving notice thereof. Now, therefore, if the said Aaron Brown shall, at all times hereafter, permit the said Tarbell, his heirs at law, or devisees, to use, improve, occupy, and enjoy said premises, in such way as they may see fit, and shall, after payment of all such sums as may be due and owing as aforesaid within the time aforesaid, at the request of said Tarbell, his heirs or devisees, (after reasonable notice given therefor,) at their proper costs and charges, make and execute a good and sufficient deed of conveyance of the premises either to said Tarbell, his heirs at law, or such person as he, by his last will and testament, or other writing, shall limit and appoint, then this obligation to be void, otherwise to remain in full force and virtue; that, on the 4th day of March, 1796, the said Tarbell died, never having paid the money in said condition mentioned to be by him due and owing to said Brown, leaving in writing a direction to said Brown to convey said premises to the wife and children of said Tarbell, in the proportions in said writing mentioned ; that afterwards the said Mary, (one of the administrators,) who was the wife of said Tarbell, and their children, in said writing mentioned, on the 15th of Feb. 1796,  paid said Brown all the money due to him from said Tarbell, in proportion to the interest in said premises to be conveyed to them, and took from him a conveyance of said premises accordingly. And that administration upon the estate of said Tarbell was granted to the appellees, in due form, on the 20th day of April, 1796, and that they have duly represented the same estate insolvent, and that, by the inventory thereof, compared with the report of the commissioners who were appointed to receive and * examine the claims of the creditors to said estate, the same estate appears to be insolvent, unless said premises be considered as a part thereof
    
      S. Dana for administrators.
    T. Bigelow for appellants.
    
      
      So in the original state of facts. Quasre if it ought not to have been April 15tn,
    
   The opinion of the Court (viz., Dana, G. J., Sedgwick, Sewall, and Thacher, justices) was delivered by the Chief Justice, who said,

-In this case, the conveyances made by Prescott to Dexter and Dexter to Brown, which, in effect, are but one conveyance, must be considered as made either to the use of Tarbell, or in trust for him, to neither of which does the administration bond extend, that having relation to personal estate only, as has been repeatedly decided. If the conveyance was in trust, this Court could not have compelled the execution of it; and, until the legislature shall .think proper to give us further powers, we can do nothing upon subjects of that nature. If the conveyance was to the use of Tarbell, then the estate vested in him; and the creditors may bring their actions, and levy their executions upon the land.

Decree affirmed.

The Court were unanimously of opinion, that they could not go into an inquiry as to any errors in fact which were not assigned in the reasons of appeal  