48 N.H. 426 | N.H. | 1869
As we understand it, the estate of Joseph Haskell, Senior, though administered in the insolvent form, was in fact solvent. The debts appear to have been paid without resorting to a sale of this real estate and without taking the rents and profits of the same. The administrator’s account has been settled; no mention is made of any attempt to charge him for the rents ; and the time for appeal has now expired. It does not appear that the administrator makes any objection to this action, nor that he has ever taken actual possession of these premises or prevented any of the heirs from taking the yearly income.
If Mrs. Baker cannot maintain this action it will be necessary, in order that she may receive her due, that the administrator should bring a suit against this defendant, recover the annual profits which in fact are not needed for the purposes of administration, and then go through the form of settling another administration account before he pays over the plaintiff’s share. We see no practical good to be accomplished by compelling the plaintiff to seek this roundabout method, nor any harm likely to result from permitting her to recover in this action. If an estate, though settled in the insolvent course, is in fact solvent, the title of the heirs is better than that of any one who does not claim under
The object of the legislation entitling the administrator to receive the rents and empowering him to bring suits respecting the realty was to protect the rights of creditors, not to harass the heirs or allow them none but dilatory or expensive remedies ; and, under the circumstances of this case, the spirit of the statute is not violated by allowing the plaintiff to recover directly the rents which it is apparent are not needed for the payment of debts, for which purpose they originally constituted a reserve fund.
In Lane v. Thompson, 43 N. H. 320, there is (on p. 325) a dictum which may be cited for the defendant, but the observations of Eastman, J., in Plumer v. Plumer, 30 N. H. 558, p. 566-7, tend to support plaintiff’s action.
It is unnecessary to consider here the remedies of heirs when the debts have not all been paid, or when the administrator’s account is still unsettled; nor what the result would have been, if, after the commencement of this action, the administrator had brought a suit to recover the rents and profits, and the defendant had pleaded that suit in bar of the further maintenance of this action.
By the statute of 1862 (P. L., ch. 2599), re-enacted in General Statutes, ch. 183, sec. 15, the widow is entitled to one third of the profits from the time her husband died until dower is assigned. The plaintiff is entitled to recover only one eighth of two-thirds of the rents and profits.
Judgment for plaintiff for $22.67 and interest.
