
    Baylies, Judge, &c. versus Chace et al.
    
    An administrator, for refusing to pay debts of his intestate with the proceeds of real estate sold under a license for that purpose, is not liable upon a bond, conditioned that after the payment of the debts he will secure the surplus on interest. But it seems he is liable upon his administration bond.
    Debt on a bond, brought by the plaintiff in his capacity of judge of probate. The condition, after reciting that Chace, as administratrix, had obtained license to sell part of the real estate of her intestate for the payment of his just debts, &c., declared, that if the administratrix should observe the directions of the law for the sale of real estate by executors or ad ministrators, and after the payment of the just debts, &c., should put the proceeds of the sale on interest on good security and dispose of the same agreeably to the rules of law, then the ob ligation should be void, &c.
    Hathaway, one of the suretiés, after oyer, pleaded a general performance of the condition by the administratrix.
    The plaintiff replied, that the administratrix represented the estate of her intestate to be insolvent, and obtained license to sell so much of his real estate as might be necessary to pay his debts, and did sell so much as produced a certain sum ; that, in an account settled in the probate office, she acknowledged a balance remaining in her hands, made up in part of the proceeds of the real estate ; that the judge made an order for the distribution of this balance among the creditors named in the order, according to the sums set against their names respectively; that the administratrix had not paid to two of the creditors, for whose benefit this action was brought, the sums set against their names, although they on, &c., at, &c., demanded payment; and that so she had broken the condition.
    To this there was a general demurrer.
    
      H. Cushman, in support of the demurrer.
    No bond is required to be given, where land is to be sold under St. 1783, c. 32, § 1, for the payment of the debts of an intestate, but only where it is expedient to sell, under § 2, more than is sufficient for that purpose. This bond, therefore, was made under a misapprehension of the statute, and is not a probate bond. Thomas v. White, 12 Mass. Rep. 367. In such case, this Court have not original jurisdiction, and if this fact appears in any stage of the proceedings, they will dismiss the action. The replication is bad, because it does not aver that all the personal estate had been expended, (for until then the remedy is on the administration bond,) and because it does not state any breach of the condition. The condition was, not that the debts should be paid, but that after they were paid the surplus should be secured on interest.
    
      Cobh, for the plaintiff,
    conceded that a bond was not necessary under the first section of the statute, but he contended, that, since a bond had been given, the defendants, after a general demurrer admitting all the facts, were estopped from denying the jurisdiction of the Court. The expression, after payment of the debts, implies that the debts are to be paid, so that a breach of the condition is sufficiently alleged. If this action is not supported, the plaintiff is without remedy, since he cannot sue on the administration bond for any misconduct of the administratrix relating to the real estate. Freeman v. Anderson, 11 Mass. Rep. 190; Henshaw v. Blood, 1 Mass. Rep. 35; Drinkwater v. Drinkwater, 4 Mass. Rep. 354; Dean v. Dean, 3 Mass. Rep. 258; Willard v. Nason, 5 Mass. Rep. 240.
   The opinion of the Court was delivered at April term 1823, at Taunton.

Per Curiam.

What is the proper construction of the condition of the bond ? We think it was not intended to secure any thing moi e than that part of the proceeds of the sale of the real estate, which was to be put out at interest. It was without doubt supposed, that the administration bond would cover all sums'which might come into the hands of an administrator, whether the proceeds of real or personal property, if wanted for the payment of debts, but that it would not cover the sum which might be in his hands over and above what might be thus wanted; and, therefore, security was required for the proper disposition of this surplus. At any rate, the non-payment of a debt, or what shall be ordered to be paid in a decree of distribution, does not come within the letter of the condition. This intention is manifest from the consideration, that in the section of the statute which precedes that in which bond is required, authority is given to executors and administrators, upon license, to sell the whole or any part of the real estate, if necessary to pay debts, without any bond or security. The second section is merely to authorize the sale of more than is necessary, lest a partial sale should prejudice the rest, and it is for this only that a bond is required.

Replication adjudged bad. 
      
       See Fay v. Valentine, 8 Pick. 526; Hasty v. Johnson, 3 Greenl. 282; Nelson v Jaques, 1 Greenl. 139.
     