Alexander v. Stewart

50 Vt. 87 | Vt. | 1877

The opinion of the court was delivered by

Redfield, J.

This action is ejectment for a lot of land in Morristown. The evidence tended to show that plaintiff’s intestate entered upon said lot in 1845, tapped a small sugar place, enclosed by slash fence about twenty or twenty-five acres of land, and continued from year to year to carry on said sugar place and cut timber from said lot until his death, December 6, 1868 ; that on March 1, 1855, Elisha Dike conveyed said lot to him by deed of that date, duly executed, and recorded; that after his decease, his son, Edwin H., occupied said lot down to September 5, 1874, when he conveyed said lot by quit-claim deed to the defendant. The intestate left a widow, who was living at the time of trial.

I. The defendant claims error in the charge as to the character of the possession of Edwin EL after his father’s decease. In the absence of any showing that his possession was under some other claim of title than as heir to his father, he would be presumed to claim under that title ; and we discover no error in the charge in that respect.

II. It is claimed that the plaintiff, as administrator, cannot eject the defendant, who holds the title of an heir of the intestate, as the case finds there were no creditors of the estate.

The administrator has the right of possession to all the real and personal estate of the intestate, and has a lien upon the same, to enable him to discharge all duties imposed upon him by law. He must pay all debts and legacies ; support the widow and minor children during the settlement of the estate; deliver to the widow such part of the estate as shall be assigned by the Probate Court; and if the whole estate does not exceed in value $300, the whole may be assigned to the widow, and this is to be a full administration. Gen. Sts. c. 51, s. 1. And to enable the administrator to discharge these duties, the statute provides that no action of ejectment shall be maintained by any heir until there shall bo a decree of distribution, or the time allowed for paying debts shall have expired. The time allowed for paying debts cannot exceed three years and six months from the time of granting administration ; that time had not expired. There was a duty of the administrator, in this case, to hold the estate until all duties that the law imposed were discharged. The widow had rights superior to any creditor. If the whole estate should be loss than $800 in value, the whole might be assigned to her. Gen. Sts. c. 51, s. 1. She was entitled, as a matter of right, to homestead, and dower.

The defendant’s counsel have cited Austin v. Bailey, 37 Vt. 19, to show that the administrator’s lien should be presumed to have been satisfied or waived. In that case nine years had elapsed after administration, and the heir all the while in open possession of tiie premises, claiming title, and the administrator neither challenging his title nor claiming any right in himself. And in that case it was a stranger, and not the administrator, that disputed the title and possession of the heir.

But when the administrator asserts the claim, and there are rights, in the estate, superior to that of any heir or creditor, there is no presumption, in a case like this, that such rights have been waived or satisfied.

Judgment affirmed.