COUNIHAN, J.

This is an action of contract to recover money paid by the plaintiff town by way of old age assistance to the defendant's intestate, Ellen Daley. G.L. (Ter. Ed.) c. 118A, § 4A, as appearing in St. 1948, c. 581, § 3. The action was tried before a judge without a jury upon a statement of agreed facts. The judge found for the defendant. We treat this finding as an order for judgment. The plaintiff appealed. G.L. (Ter. Ed.) c. 231, § 96. There was no error.

The facts are these. The plaintiff furnished old age assistance under G.L. (Ter. Ed.) c. 118A, as appearing in St. 1936, c. 436, § 1, as amended, to Ellen Daley from December 1, 1944, to October 1, 1951, in the amount of $4,867.24. Ellen died on October 29, 1951. Until May 21, 1951, Ellen had been living in a house owned by her sister Anna who died on that date. When Anna died her estate consisted of the house in which Ellen had lived on lot 21 and a vacant lot of land adjoining described as lot 20. The house and the lot upon which it stood were assessed for $2,900. There was a mortgage of $1,100 on the house and lot. The vacant lot was assessed for $300. Ellen was the sole heir of Anna and she continued to live in this house until her death on October 29, 1951.

The present action is brought with the approval of the department of public welfare. G.L. (Ter. Ed.) c. 118A. We consider this case only upon count 1 of the plaintiff's declaration which seeks recovery under c. 118A, § 4A.

Garrett J. Murphy was appointed administrator of the estate of Ellen on December 12, 1951, and he was appointed administrator of the estate of Anna on December 24, 1951. On June 5, 1952, as administrator of the estate of Anna he petitioned the Probate Court for authority to sell lots 20 and 21 apparently under the provisions of G.L. (Ter. Ed.) c. 202, § 19, as amended by St. 1941, c. 341, § 1, and on June 13, 1952, a license to sell such real estate was granted. This real estate was sold by Murphy as administrator of Anna's estate for the sum of $9,500 and after the payment of the mortgage, taxes and other expenses there remains in his hands as such administrator the sum of $7,100. The record does not disclose that a petition for distribution or any account has ever been filed by Murphy as administrator of either estate.

Ellen as the sole heir of Anna acquired title to this real estate by descent at the instant of the death of Anna and no distribution was required. Newhall, Settlement of Estates (1937) § 210. Compare Daley v. Daley, 300 Mass. 17, 21. General Laws (Ter. Ed.) c. 202, § 19, authorized the sale of the whole or any part of this real estate by the administrator of Anna's estate and further provides that "the net proceeds of such sale, after deducting the expenses thereof and such amount as may be required for the payment of debts . . . and charges of administration, in consequence of a deficiency in the personal property, shall be paid over to the person or persons who would have been entitled to such real estate and in the proportions to which they would have been entitled had it not been sold." See G.L. (Ter. Ed.) c. 204, § 9. Ellen, being the sole heir of Anna, was entitled to all of such real estate. Under the statute she would have been entitled if living to the net proceeds of the sale without further proceedings in the Probate Court as matter of right and when received they would have become her personal property. Inasmuch as Ellen died before the net proceeds of this sale under c. 202, § 19, became available, her administrator who stands in her shoes became entitled to receive these net proceeds. The administrator of Anna is therefore holding in his hands funds which rightfully belong to the administrator of the estate of Ellen.

The defendant argues that these funds retain the characteristics of the real estate and that, Ellen having died before the sale, the net proceeds of the sale should be paid to the heirs of Ellen. We do not agree. As we have already pointed out, c. 202, § 19, provides that the net proceeds be paid over to the person who would have been entitled to such real estate. We think that this undoubtedly means the person who was entitled to the real estate at the time of the death of Anna. That person was Ellen and if living these funds would have to be paid over to her. If deceased the funds should go to her administrator. Whether such funds were real or personal property they were liable in any event to satisfy the debts of Ellen.

The defendant relies upon Dartmouth v. Paull, 329 Mass. 22. But the facts in that case are entirely dissimilar to those in the case at bar which we think more closely resembles Boston v. McCafferty, 328 Mass. 177.

We think that the plaintiff has a meritorious claim on which it ought to recover if means may be found to permit it. See Cogswell v. Hall, 185 Mass. 455, 456.

Under the provisions of c. 118A, § 4A, the administrator of a person to whom old age assistance has been furnished by a town must be in possession of funds not exempted before such administrator is liable to such a town. The order for judgment was therefore correct because it appears that this action was prematurely brought.

We think it appropriate to say, however, that when the funds arising out of the net proceeds of the sale of the real estate come into the possession of Murphy as administrator of the estate of Ellen, by reason of suitable proceedings in the Probate Court or otherwise, see G.L. (Ter. Ed.) c. 197, § 24, they will become new assets coming into the hands of such administrator after the expiration of one year from the time of his giving bond and such administrator shall be liable, on account of such new assets, "in like manner as if such assets had been received within the one year." G.L. (Ter. Ed.) c. 197, § 11. The plaintiff town could then institute a new action at law to enforce its claim for expenses incurred for old age assistance to Ellen.

Order for judgment affirmed.