The opinion
Haskell, J.
It is the settled law of this state that rents and profits of the real estate óf a deceased insolvent debtor, until it shall be sold for the payment of debts, belong to the devisee or heir at law, and not to the executor or administrator. Kimball v. Sumner, 62 Maine, 305.
When an executor or administrator takes rents of real estate, by agreement with the devisee or heir, as assets, to save the real estate from sale, or for the advantage of all persons interested, *525 then it is proper enough to include the same in the probate account; but by operation of law, independent of any agreement of the parties, such rents do not belong to the executor or administrator, and are not assets that he is required to administer or account for within the condition of his bond. If a will should give such rents to an executor to be administered by him, or should make them assets to be administered upon, the case would be different.
In the case at bar, the testator devised his real estate to his executor by name, in trust for the benefit of a son until lie should arrive at the age of thirty years. This is clearly a testamentary trust, and the income of the real estate did not become assets to be administered by the executor. True, the trustee, now dead, did not qualify as trustee by giving the bond required by statute, but, so acting, received certain rents and profits of the real estate, and paid a portion of the same to his cestui in accordance with the terms of the trust as defined in the will.
In what capacity the supposed trustee took and received the rents and profits in question it is not now necessary to decide, as it is clear that they did not come to Ins control as executor by operation of law, nor by force of any agreement of the parties in interest.
Decree of the judge of prolate affirmed with costs.
Peters, C. J., Walton, Danforth, Libbey, Virgin and Emery, JJ., concurred.