Plaintiffs contend that, although the alleged heir at law and devisees did not prove a case, the administrator de bonis non is entitled on this record to recover against the surety on the deceased administrator's bond on the alleged devastavit. The answer to the question now for the first time presented rests in a determination of *Page 166 the problem as to in whom and against whom a cause of action arises when such a devastavit is committed.
At common law, to an administrator de bonis non was committed only the administration of such goods, chattels, and credits of the deceased as had not been administered. M.S.A. 525.291 and all previous enactments merely restated the common-law rule and authorized the appointment of an administrator de bonis non "to administer the estate not already administered." Under the strict common-law rule, he was entitled to possession of only such personal estate as remained in specie. Beall v. New Mexico, 83 U.S. (Wall.) 535, 540, 21 L. ed. 292, 294, where the court said:
"The next point made is a more serious one, to wit, that an administrator de bonis non cannot maintain suit on the original administrator's bond. * * * the whole frame of the petition is conceived on the theory that the duty of Beall [the displaced administrator] to respond for defaults and devastavits in administration is owed to the administrator de bonis non. This does not seem to be the law as understood in England or in the States which derive their principles of jurisprudence from England, although in some States statutes have been passed making it the duty of an administrator who has been displaced, or of the representatives of one who has deceased, to account to the administrator de bonis non [citing cases]. By the English law, as administered in the ecclesiastical courts, the administrator who is displaced, or the representatives of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate, distributees, next of kin, or creditors; * * *. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. * * * And all assets of the testator or intestate in the hands of third persons at the death of an administrator or executor intestate belong to the administratorde bonis non. I Williams on Executors, 781, 4th American edition. Of course debts and choses in action not reduced to possession belong to this category. In this *Page 167 case the claim of Hinckley's estate against his surviving partners is of this character. If anything can be realized therefrom by the prosecution of those partners, it is the duty of the administrator de bonis non to prosecute them, as much as it was his predecessor's duty to do so, before his discharge. But, for the delinquency of the former administrator in not prosecuting, he is responsible to the creditors, legatees, and distributees directly, and not to the administrator de bonisnon. This is the result of the authorities referred to. And it follows that, as the administrator de bonis non has no claim against the former administrator on this ground, he cannot prosecute for it on the administration bond. * * * If specific effects of the estate remain in the hands of a discharged administrator or executor, or in the hands of his representatives, of course, the administrator de bonis non is entitled to receive them. And, if they are refused, he will be the proper person to institute suit on the bond to recover the amount. But this is perfectly consistent with the doctrine above expressed, that for delinquencies and devastavits he cannot sue his predecessor or his predecessor's representatives, either directly or on their administration bond." See, also, United States v. Walker, 109 U.S. 258,3 S. Ct. 277, 27 L. ed. 927.
In this case, we have modified by judicial decision the strict rule that the administrator de bonis non was entitled only to that part of the estate which remains in specie. Balch v. Hooper, 32 Minn. 158, 20 N.W. 124. That case involved personalty which was not still in specie, but was the proceeds of assets which the administrator had converted into money. In settling the administrator's account when he sought discharge on account of ill health, he was found by the probate court to have over $10,000 which he had realized from disposing of assets of the estate. Such property was a tangible asset of the estate as distinguished from any liability for a devastavit.
In this state, title to real estate passes to the heir at law and the devisees upon the death of the owner, subject only to the right to possession of the administrator when appointed by the probate court for purposes of administration. The administrator's right is *Page 168 sole, not joint with the heirs. Miller v. Hoberg, 22 Minn. 249. In the case at bar, at the time of the alleged devastavit the time for filing claims had long since expired. There is nothing in the record indicating that there were any creditors. The land had not been occupied by any tenant for some years. There was no evidence of any diminished rental value or of any loss by reason of the alleged devastavit, except what the alleged heir and devisees may have suffered by reason of the alleged diminution in value of the land itself.
We have searched our reports in vain for cases where the common-law rule has been changed any further than to abolish the "in specie" qualification. Since counsel have cited none, we must assume that they have found none. While broad expressions are found in some cases, when the facts are analyzed they go no further than to justify recovery of assets not before administered. In all the cases brought by the administrator de bonis non, where recovery was permitted against the displaced administrator, as in Balch v. Hooper,32 Minn. 158, 20 N.W. 124, supra, property was in the hands of the displaced administrator which he should have turned over to the administrator de bonis non.
Nor does this case fall within the purview of M.S.A.525.35, which imposes a liability for failure to collect debts due the decedent, or to sell property, or to pay over money in the administrator's hands by reason of which "the value of the estate is lessened, * * * or the persons interested suffer loss." By the statute, such neglect shall be considered waste and the administrator's accounts be surcharged therewith. But the waste so defined is limited to the results of the three types of failure enumerated.
Neither this statute nor any other that has been called to our attention creates a cause of action on a devastavit such as this against the displaced administrator in favor of the administrator de bonis non. On presentation of Kennedy's account, which included the proceeds of the sale of the lumber, Bemboom objected to its allowance, but the court allowed the account and did not surcharge it in respect to the lumber or buildings. The cause of action, if any, *Page 169 in favor of the administrator de bonis non was not against the bondsman of the deceased administrator.
Petition denied.