Noah Haynes Swayne

“ The question whether the administrator thus appointed could exercise any authority as to the real estate is deemed an important one by the counsel on both sides, and has been fully argued. The Maryland statutes which bear upon the subject provide for the appointment of an administrator de bonis non, with the will annexed, but are silent as to his powers. By the common law his duties are confined to the personal estate, unadministered by his predecessor. Whatever authority he may possess as to the real estate must be derived from the will. ”

“ If no provision be made by the will for such substitution, the power does not become extinguished, but the case falls within the category of those where a court of equity will not permit a trust to fail for the want of a trustee, but will appoint one, and clothe him with authority adequate to the duties to be discharged. ”

“ Many of the duties enjoined upon the executors were foreign to those which come within the scope of their ordinary functions. Such a power never passes by devolution to an administrator, unless it be clear that it was the intention of the testator that he should become the donee of the power, in place of the executor appointed by the will. ”