By the Rev. Sts. c. 109, <§> 62, “any debt or legacy due from an executor or administrator, and any other goods, effects or credits, in the hands of an executor or administrator, as such, may be attached in his hands, by the process of foreign attachment; ” and the question in the present case is, whether an intestate’s goods or effects are in the hands of his administrator, as such, before the administrator has given bond for the discharge of his trust. The answer to this question is to be sought in the statutory provisions respecting an administrator’s powers, duties and liabilities.
The Rev. Sts. c. 64, <§4 5, 7, require that every adminis trator shall give bond, before entering on the execution of his trust; and by <§> 11, any one who shall sell any of the goods or effects of a deceased person, before having taken out letters testamentary or of administration thereon, and given bond as executor or administrator, shall be liable as executor in his own wrong. It is manifest, from these provisions, that an administrator has no legal authority, as administrator, to take possession of the deceased’s effects, or to institute a suit to recover possession of them, until he has given bond. It is also manifest, that if such effects are in his hands, before he has given bond, he does not hold them as administrator.
There are other provisions of the statutes which show that the liabilities of an administrator, as such, are not incurred *114until he has given bond for the faithful discharge of his trust. By the Rev. Sts. c. 66, <§>§ 3, 10, 25, the year, during which he is protected from actions by the creditors of his intestate, and the four years during which he continues liable to their actions, are to be computed from the time of his giving bond. And so, by c. 67, <§> 7, of the year within which he is required to render his first account of administration.
The decree of the judge of probate, appointing the defendant administrator of the estate of Alice Fisk, was in these words: “ The court now decree that administration on said estate be granted to the said Samuel Davis, he giving bond, according to law, for the faithful discharge of his trust.” By the terms of the decree, the giving of the bond was a condition precedent to its taking effect. The decree was passed on the 11th of October, 1844, and the defendant’s bond bears the same date. But the bond took effect from the delivery, which was on the 12th of October, and not fro.m its date.
As the defendant had not in his hands, as administrator, any goods or effects of his intestate, on the 11th of October, the service of the trustee processes upon him on that day was premature and fruitless. When the first two processes (that of the plaintiff and that of Fanny Davis) were served upon him, on the 12th of October, after he had given bond, he was trustee of Estes Davis, to the amount of two hundred dollars; and as those processes were served simultaneously, and as each plaintiff therein recovered judgment against Estes Davis' for more than two hundred dollars, the present plaintiff is now entitled to one half of that sum, although his original judgment was for a less sum than was recovered by Fanny Davis. See Shove v. Dow, 13 Mass. 529; Sigourney v. Eaton, 14 Pick. 414.