Smith, J.

In this case there is an unpaid legacy. The person named as executor never qualified, and there has been no administration of the estate. An administrator with the will annexed is necessary for the payment of the defendant’s legacy. Whether the legacy is a charge upon land, and what power the administrator may have to recover the real estate mortgaged by Leavitt or sold by his administratrix, are questions not necessary to be considered. The appeal should be dismissed, and the decree of the probate court affirmed.

Case discharged.