The opinion
Wells, J.,
orally.—A demandant in a real action must prove his title. Under the will the title was vested in two persons, executors and trustees. Provision was made in the will for the appointment of a substitute, if one of them should die.
One of them died. Thereupon Mr. Appleton was appointed and qualified, and gave bond, not as a trustee, but as administrator de bonis non. In his commission, nothing is said in reference to rights or duties as a trustee. The offices and the requisite bonds are very distinct.
In administrators de bonis non. the title to the testator’s real estate does not vest. They can maintain no real actions. We think no title vested in Mr. Appleton, upon which to maintain this suit.
There are other questions of magnitude in this case, but it is unnecessary to discuss them. Demandants nonsuit.