delivered the opinion of the Court.

This seems to be an action of a new impression, and an attempt to extend the construction of the condition of the bond, on which the action is founded, beyond the limits established by any decided cases to which our attention has been called in the argument of the cause, or which have fallen under our observation before or since. By the report it appears that the defendant duly caused an inventory to be made and returned to the Probate office, of all the estate of the intestate, including the lots of land on which the several parcels of timber and cord-wood, mentioned in the verdict, were cut, after the intestate’s decease. The present action is one of the consequences of the unexpected insolvency of the estate, occasioned by. the recovery of a judgment to a large amount, by the said Green, against the defendant as administrator. Prior to the commencement of that action, the heirs had made an arrangement among themselves as to the division of the real estate, and entered into possession. It further appears, that as soon as this Court had rendered judgment in the above-named action, a commission of insolyency was issued by the Judge of Probate on the representation made by the defendant, on which due proceedings were had and a final decree of distribution passed. It seems that, timber of the value of $350 was cut on the timber lot after the above judgment was rendered, with the knowledge of the defendant: and about $50 were cut by the defendant himself, before the insolvency was known. On these facts is the defendant liable on his bond ? At the time the intestate died, the trees in question were all standing on the land and then were a part of the freehold, and thus were inventoried as a part of the land. They never could, and certainly never did become personal property until they were severed from the freehold. This principle is undisputed. The condition of the *371bond is, after describing the property required to be inventoried, “ and the same goods and chattels, rights and credits of “ the said deceased, at the time of his death, which at any time “ after shall come to the hands and possession, or into the hands “ and possession of any other person or persons for the said (ad- “ ministrator) do well and truly administer according to law.” The counsel for the plaintiff contends that as the trees, when standing, were the property of the deceased — and real estate, that they were his personal property, as soon as they were felled and severed from the freehold : still they were not personal property of the intestate at the time of his decease; — is the defendant then accountable on his bond for its amount ?

It is urged that he should have seised the timber and cord-wood as soon as they became personal property, by a severance from the freehold; and that his neglect so to do, was unfaithful administration and a breach of the condition of his bond. By ascertaining the rights of the defendant, in his character of administrator, in the circumstances above stated, we can most readily decide what were his duties and liabilities.

It is a familiar and established principle of law, that when a man dies seised of real estate and intestate, it descends to his heirs, subject to the payment of his debts, if there be a deficiency of personal assets. His administrator has no right to enter into the lands or take the profits. He has no interest in them, but a naked authority to sell them on license to pay the debts. An administrator has no interest in the real estate, unless mortgaged to the intestate, he has no right of entry into it, and cannot bring any real action to recover seisin and possession. The foregoing principles are distinctly laid down by Parsons C. J. in Drinkwater v. Drinkwater, Admr. 4 Mass. 354. And in Na-son v. Willard, 5 Mass. 240, the same Chief Justice says, “ The “ executor or administrator has in no case, virtute officii, a right “ to the possession of the deceased’s lands.” — If they are wanted for payment of debts, the administrator may sell them, when in possession of a devisee or of an heir, his heirs or assigns ;— see also Gibson & al. v. Farley & al. 16 Mass. 280. These principles are firmly settled. Nor can an administrator maintain an action, in his official capacity, of trespass quare *372clausum fregit. Such actions must always be brought by the heirs and by them only. On the death of the intestate, in the case before us, all his lands and real estate immediately descended to his heirs. They had á right immediately to enter into possession; such possession was lawful, and such a division as they made among themselves, subject to the right of the administrator to sell them to pay the debts, when duly licensed for the purpose : and they had a right peaceably to hold such possession, until their conditional estate was defeated and taken away by such sale. What more then could the defendant have done than he has done ? '

As to the timber and wood cut on the timber lot, it was not cut by the defendant or his consent: though a part of it was with his Tcnowledge; but how could he have prevented it ? He had no power to do any thing more than take immediate measures to obtain authority to sell the land ; and all this was regularly done, and the land sold. The trees descended with the land, and as a part of it, to the heirs ; and a portion of them was appropriated by them before a sale was made, or even suspected to be necessary. Such was the fact also with respect to the trees and wood cut by the defendant himself, before the estate was supposed to be insolvent. It has been settled in the above cited case of Gibson & al. v. Farley & al. and in Heald v. Heald, 5 Greenl. 387, that in case of an insolvent estate, the creditors are entitled only to the estate of which the intestate died seised; and not to the rents and profits after his death; for these belong to the heirs. In the above cases, however, the Court were deciding in respect to the annual rents and profits, which had no existence, as property, in any form, during the life of the intestate, as the trees had in the case under consideration ; though not as personal property. Whether any distinction can be made between the two cases, has been a subject of interesting inquiry, in view of those consequences which might, in certain circumstances, be productive of manifest and extensive injustice. If,, for instance, the heirs at law of a person who dies seised of a tract of woodland, but insolvent, can strip the land of all its wood and timber, before an administrator can so. far proceed in the settlement of the estate *373as to procure a license to sell it for payment of debts; or if the administrator himself, after the decease of the intestate and the return of an inventory, including the land supposed, should cut down the timber and wood and appropriate the same to his own use ; and, if in neither case the creditors can avail themselves of the value or proceeds of such timber and wood, because, in the former case, the administrator has nothing to do with real estate of an intestate, except to sell it under license, and because the intestate did not die possessed of it as personal estate ; and because, in the latter case, it was not personal estate, until he made it such, after the intestate’s death ; if, we say, these principles are legally founded, the consequences may prove serious to thousands : for though, in the latter case, the heirs might sue the administrator for the trespass and recover damages, still, such recovery might, and generally would be of no use to the creditors. We suggest these ideas and present these views, as worthy of some consideration, and also as calculated to create some perplexing doubts and difficulties. But in this cause we do not feel it necessary to give any opinion on either of the supposed cases : for if the administrator in the present case, is not liable on his bond to account for the value of the timber and wood, because the land was duly inventoried and sold, and the proceeds of the sale accounted for; and because such timber and wood were never the personal estate of the intestate, then it clearly- follows that the action cannot be maintained. On the contrary, if he is liable to account for the value of such timber and wood, according to the true construction of his bond, as property that has since the return of the inventory come to his hands and use, in the shape of personal property, and of which the creditors have received no advantage from the inventory, still, the defendant cannot be held to account, until he shall have been cited by the Judge of Probate for the purpose : as this Court has decided in the case of Totter, Judge v. Titcomb, 7 Greenl. 302. In that case the Court adjudged the replication insufficient, because the plaintiff in assigning a breach of the condition of the bond, did not allege that, before the commencement of the action, Titcomb had been cited by the Judge of Probate to render an account of *374the property which was stated to have come to his hands and for which he had not accounted. In such cases our statute ex pressly requires a citation as a necessary preliminary to the maintenance of an action on the bond. Thus it appears that, quacunque via data, the action cannot be sustained; and according to the terms of the report, the verdict is to be so amended as to stand a verdict for the defendant.