44 P. 282 | Or. | 1896
Opinion by
In King v. Boyd, 4 Or. 326, which was a suit by an administrator to set aside a fraudulent conveyance of the intestate, Bonham, J., speaking for the court, says: “The authority of an executor or administrator over the real estate of his decedent being in derogation of the common law, we think is, and ought to be, strictly limited to his rights and powers as created and defined by statute. * * * In this case * * * there was no occa
Wisconsin seems to have copied from the Michigan statute upon this subject, and in construing it her supreme court has reached practically the same conclusion. In Jones v. Billstein, 28 Wis. 228, Lyon, J., speaking for the court, says: “As we understand this statute, it gives the personal representative the power to reduce the real estate to his actual possession, should he think proper, or should the probate court direct him so to do; but it does not imperatively require him to take possession thereof, and until he does so the common law right of the heir to the possession remains unimpaired.” And in Marsh v. Board of Supervisors, 38 Wis. 253, the same judge says: “Until that right is asserted and possession taken, the heirs may maintain ejectment for the land.” See also Barker v. Barker, 14 Wis. 162; Filbey v. Carrier, 45 Wis. 471; Flood v. Pilgrim, 32 Wis. 378. In Minnesota the judicial interpretation is the same. In Noon v. Finnegan, 29 Minn. 414, (13 N. W. 197,) Mitchell, J., says: “We adopted this statute from Wisconsin, which had previously obtained it from Michigan,” and, after stating the
So that, applying the interpretation of statutes elsewhere similar to our own touching the adminis
In this connection we may say our attention has been called to section 1126 of the statute, as having some bearing upon the question of adverse possession as it pertains to this case. The section alluded to entitles the widow to remain in possession of the homestead until administration of the estate has been granted, and the inventory filed. The question whether Martha Hoffman actually occupied the premises under the belief that she was exercising the statutory privilege accorded a widow, or adversely under claim of title, is also one of fact to be determined by the jury, or the court exercising the functions of that body.