Aubuchon v. Lory

23 Mo. 99 | Mo. | 1856

LEONARD, Judge,

delivered the opinion of tbe court.

Tbe plaintiff, as executrix, instituted an action in a justice’s court for an alleged trespass upon her testator’s land, committed since bis decease, which, on a plea of title, was removed into tbe Land Court, where it was dismissed upon the ground that the plaintiff could not maintain a suit in that capacity for tbe alleged wrong. •

The judgment must be affirmed. Tbe real estate of a deceased person descends, upon bis death, to bis heirs, or passes to the devisees under his will. By tbe common law, tbe personal representative, whether executor or administrator, takes no interest in it, and our statute" gives him nothing hut the naked power to sell for the payment of debts, or to make short leases, under the direction of the county, court. The right to the possession, therefore, belongs to the heirs or devisees, and they only are the proper parties to sue for any injury to it. It is upon this principle that executors and administrators, as such, are not allowed to maintain actions of ejectment. The judgment is affirmed.