TESTAMENTARY LAW. 2893

Administration de bonis non.

An. Code, sec. 70. 1904, sec. 69. 1888, sec. 70. 1798, ch. 101, sub-chs. 5, 14, secs. 2, 6.
71. If an executor or administrator shall die before administration is
completed, letters de bonis non or de bonis non cum testamento annexo
may be granted at the discretion of the court, giving preference, however,
to the person entitled if he shall actually apply for the same; and the form
of the letters shall be as hereinbefore directed, except that the words " not
already administered" shall be added in their proper place; and the
authority conferred thereby shall be to administer all things herein de-
scribed as assets, not converted into money and not distributed and delivered
or retained by the executor or former administrator, under the court's
direction.

When administrator d. b. n. will be appointed.

Since distributees can only get title through an administration, an administrator
d. b. n. will be appointed although estate has been entirely closed except to dis-
tribute. Smith v. Dennis, 33 Md. 449; Lawson v. Burgee, 121 Md. 208.

As to when letters d. b. n. will be granted, see also Woelfel v. Evans, 74 Md. 350;
Myers v. Forbes, 74 Md. 362; Smith v. Dennis, 33 Md. 449; Scott v. Fox, 14 Md.
388; Alexander v. Stewart, 8 G. & J. 226. Cf. Myers v. Safe Deposit Co., 73 Md. 424;
Lawson v. Burgee, 121 Md. 208.

Powers of administrator d. b. n.

To administrator d. b. n. is committed only administration of property which
remains in specie. He has nothing to do with assets wasted, misapplied or converted,
and hence cannot sue for a devastavit. Morrow v. Fidelity Co., 100 Md. 262; Sibley
v. Williams, 3 G. & J. 63; Neale v. Hagthrop, 3 Bl. 563; -Hagthorp v. Neale, 7 G. &
J. 13; Hagthorp v. Hook, 1 G. & J. 274; United States v. Walker, 109 U. S. 258.
And see Ingle v. Jones, 9 Wall, 486.

Where a will confers a power to sell real estate upon executor, administrator
d. b. TO., c. t. a. succeeds to power of sale under sec. 300; contra, however, if executor
dies before testator, and hence power of sale never vests. If nothing remains to
be done to complete administration, letters d. b. n. are nugatory. Wilcoxon v. Reese,
63 Md. 545.

Generally.

When an administration in orphans' court by an administrator d. b. n., c. t. a.
is necessary to confer title upon a legatee. Jurisdiction of equity. Property in-
advertently omitted from inventory and account. Property acquired after death of
testator. Myers v. Forbes, 74 Md. 362.

This section construed in connection with secs. 31 and 32, requires that those en-
titled to notice be summoned before the letters d. b. n. are granted. Thomas v.
Knighton, 23 Md. 325. And see Wilcoxon v. Reese, 63 Md. 545.

The term " person entitled " is not limited to those absolutely entitled as enumer-
ated in sec. 32. The whole of art. 93 will be construed together. This section con-
strued in connection with secs. 22, 23 and 29. Kearney v. Turner, 28 Md. 424.

If an executor dies without making a full distribution and delivery of assets of
estate, it is necessary to have an administrator d. b. n.; executor's executor is not
competent as a general rule to interfere with such assets or to render an account for
deceased administrator. If fund has been lost, wasted or misapplied by deceased
executors, equity, under facts of case at bar, would appoint trustee to sue for
recovery of fund. Lawson v. Burgee, 121 Md. 208.

The appointment of an administrator d. b. n. is within jurisdiction of orphans'
court, and personnel of appointee is a matter resting within its discretion. Sharp
v. State, 135 Md. 559.

The party entitled having renounced, the appointment of the party next entitled,
upheld—see notes to sec. 38. Stocksdale v. Conaway, 14 Md. 106.

This section referred to in discussing the limited discretion vested in the orphans'
court. Georgetown College v. Browne, 34 Md. 458.