This is an appeal from a decree of the Municipal Court of the City of Providence settling the account of Edwin L. Branch, as administrator de bonis non with the will annexed of the estate of Stephen Branch. The appellant is surviving surety on the administrator's bond. His *Page 227 right to appeal is not disputed, and, we think, cannot be successfully disputed. The decree finds the balance for which the surety is bound, and therefore the surety is aggrieved if the balance found exceeds the proper amount. Farrar v. Parker, 8 Allen, 556; Curtis v. Bailey, 1 Pick. 198; Garber v. TheCommonwealth, 7 Pa. St. 265; Stovall v. Banks, 10 Wall. 583.
The administrator was appointed October 4, 1859. He rendered an inventory October 11, 1859, showing the receipt of $1,745. He afterwards settled nine accounts, the ninth being settled October 13, 1868, showing the balance of $1,745 still in his hands, the income thereof, less expenses, having been divided among the legatees under the will. He rendered the account now before us October 15, 1872. It shows a balance in his hands of only $1,395. The income only has been divided out, but the administrator has used $500 of the fund in repairs on real estate devised by the will. He has since replaced $150 out of the rents of the real estate. The balance stands $1,745 — 500+150=1395. The appellees contest the right of the administrator to use any part of the moneys in his hands in repairs on the real estate. They also dispute certain items of his account relating mainly to his dealings with the real estate, the charge of which he assumed when he became administrator, renting it for the devisees and accounting therefor in his administration accounts. The result of the contest in the Municipal Court1 has been a balance found against him of $2,268.49.
Two questions arise, namely: 1st. Had the administrator a right to use any part of the moneys in his hands in repairs on the real estate? 2d. Is he chargeable in his administration account for his dealings with the real estate? The appellant claims that he had a right to use the moneys for repairs under the will. The appellees claim that he is chargeable as administrator for his dealings with the real estate under the will. The will is as follows, viz.:
"I Stephen Branch of Providence in the County of Providence State of Rhode Island c. do ordain and make this my last will and testament. As my property is principally in real estate my wife's right of dower will be a suitable portion for her *Page 228 of my estate I give devise and bequeath all the rents profits dividends or income of my estate real or personal to my six sons or to those who represent them legally to wit William L. Stephen H. Albert S. deceased Thomas W. Henry E. and Edwin L. until the decease of the last of my said sons aforesaid to be divided equally among them or those who legally represent them the representatives taking the portion only of him they represent. At the decease of the last of my said sons as aforesaid I give devise and bequeath all my estate both real personal or mixed to all my grandchildren, to be equally divided among them their heirs and assigns forever in fee simple I direct my executor hereinafter named to pay all my just debts and necessary expenses out of the property aforesaid and to pay all taxes and repairs which are absolutely necessary and to divide the rents profits and income of the real and personal property as aforesaid I hereby appoint my eldest son William L. Branch my executor.
"In testimony whereof, I have hereunto set my hand and acknowledged this as my last will and testament, at Providence, this second day of May A.D. one thousand eight hundred and forty-five (1845)."
The will manifestly charges the executor with the care of both real and personal estate so long as either of his sons survives. In fact it creates a trust of the real and personal estate, though it may be questioned whether the executor takes the legal title of the real estate or anything more than a power over it. The point is made by the appellant that the estate must be considered as having been fully administered, and that the balance, in the hands of the administrator, is to be regarded as in his hands not as administrator but as trustee under the will. We are not of that opinion. There can be no claim that the executor, during his lifetime, had fully administered; for, if he had, the administrator de bonis non could not properly have been appointed. The moneys received by the administrator were therefore received by him as administrator, and there is no evidence of any change of the capacity in which he has held them. Indeed it is only as administrator that he succeeds the executor, and the moment he ceases to be administrator, he ceases to fill any trust under the will by virtue of his appointment as such, the Municipal Court being powerless to authorize him to act as trustee *Page 229 in any other capacity. We think, therefore, that, so far as the personal estate is concerned, he is liable as administrator. And see Prior, Executor, v. Talbot et al. 10 Cush. 1.
Did he succeed the executor with respect to the real as well as the personal estate? If he did not, he cannot be required to account in the Municipal Court for his dealings with the real estate. Certainly if the effect of the will is to make the executor trustee, and vest in him the legal title of the real estate during the continuance of the trust, it cannot be claimed that an administrator de bonis non with the will annexed would, by virtue of his appointment as such, succeed to the trust. But supposing the will does not have this effect, but only clothes the executor with certain powers over the real estate, would an administrator appointed to succeed to the office likewise succeed, by virtue of his appointment, to the powers? We think not. Ordinarily an administrator, who is appointed to succeed an executor, takes only the powers inherent in the office. A power over real estate is not inherent in the office. The executor has no power over the real estate unless it is given him by the will, and the administrator cum testamento annexo, independent of any statute, has no such power as successor to the executor, even where the power is given by the will to the executor, unless the power is either expressly or by implication extended to him by the terms of the will. Conklin v. Egerton's Adm'r, 21 Wend. 430; Egerton's Adm'r v. Conklin, 25 Wend. 224; Gilchrist,Adm'r, v. Rea, 9 Paige, 66; Wills v. Cowper et al. 2 Ohio, 124; Ross v. Barclay, 18 Pa. St. 179; Lucas v. Doe ex dem.Price, 4 Ala. 679. And see Brown v. Hobson, 3 A.K. Mar. 380;Justices of Mason Co. v. Lee, 1 T.B. Mon. 247; Tainter v.Clark, 13 Met. 220. In the case at bar the power or trust is conferred on the executor not under a simple official designation, but on "my executor, hereinafter named," the person named being an "eldest son," and we do not find in the will any satisfactory indication of an intent on the part of the testator to annex the power or trust to the office, so that an administrator in taking the office must needs take the power or trust as incident to it.
The counsel for the appellees claims that the administrator, having received the rents of the real estate, is chargeable with *Page 230 them in his account. He cites numerous cases in support of this claim. We think, however, it will be found that the cases cited are, for the most part, cases in which moneys derived from the sale or lease of real estate were received by an executor or administrator as assets belonging to the estate. In the case at bar the rents were received in pursuance of a special trust, which the administrator had assumed to execute, without authority other than the acquiescence of the cestuis que trust. He may be accountable for the rents so received, but we do not think he is accountable for them in the Probate Court. The Probate Court is not authorized, and under the constitution cannot be authorized, to exercise chancery jurisdiction. Goodrich v. Thompson, 4 Day, 215; M'Coy v. Scott, 2 Rawle, 222.
Our conclusion is, that any part of the balance found by the Municipal Court against the administrator, which accrued by reason of his receipt of rents of the real estate, must be stricken out.
The appellant contends that the balance should be still further reduced by a credit of the moneys expended by the administrator in repairs upon the real estate and not yet restored. We do not think the administrator was authorized to use the personal estate in repairing the real. Byrd v. Miller, 2 Mo. 102. Even if the executor had such a power under the will, the administrator did not succeed to it. The balance against him will not be reduced by any such credit.
The administrator is, in our opinion, still chargeable with the original balance of $1,745. He is also chargeable with any interest or income of the personal estate received by him and not divided, and he should be required, not only to restore the moneys withdrawn for repairs upon the real estate, being part of the balance of $1,745, but also to make good any loss of interest or income resulting from their withdrawal. The account should be revised and the balance struck in accordance with those views.
After the foregoing opinion was delivered, and before any decree was entered thereon, the appellant was further heard, and thereupon submitted testimony to show that a large part of the balance of $1,745, declared to be due to the estate, was on deposit in three different savings banks in the name of Edwin *Page 231 L. Branch, administrator, and, it appearing that Edwin L. Branch had been removed from his office since presenting his account, and a new administrator appointed in his place, the appellant contended that the deposits having passed into the control of the new administrator, the amount thereof should be credited to the old administrator, and the balance against him reduced to that extent. The appellees contended that the old administrator was not entitled to the credit, inasmuch as it appeared by the testimony offered that, previous to his removal, he had pledged or hypothecated the deposit books for his individual account.
1 This court has probate jurisdiction in Providence.