Cushman v. Jordon

| Vt. | Mar 15, 1841

The opinion of the court was delivered by

Williams, Ch. J.

The plaintiff sues as administrator of the estate of Stephen Upson, jr.,'one of the original grantees of the town ofWenlock, to recover the possession of lot No. 32, laid to the right of said Upson. The charter was dated in 1761, and Upson died more than sixty years before the time when this action was tried in the county court, and must have died before Vermont became an independent state. It appears that he left two sons and three daughters: One of his sons and one of his daughters, with her husband,conveyed their interest in the right of their father, on the 12th of June, 1832, to David H. Sumner, who put the defendant in possession. A part of the right of the other son was also conveyed to Sumner about the same time. The letters of administration to the plaintiff, were granted'subsequently to this, to wit, in November, 1832, and the plaintiff, by virtue of his letters of administration, recovered a verdict for one undivided moiety of the premises declared for.

It is not necessary for us to say whether a court of law will disregard a letter of administration and declare it void, after so great a lapse of time as passed, in this case, between the' death of the intestate and the granting of the letter of administration, or whether, under the statute of 1821, in relation to the settlement of estates, a letter of administration would be necessary where the estate has descended to and been occupied by the heirs. The case of Hubbard v. Ricart, 3 Vt. R. 207., determined that after a short period of time had elapsed, the claim or lien of the administrator might be presumed to be at an end, as against the heirs. Before the year 1821, the heirs or devisees might, at any time, maintain an action of ejectment to recover lands belonging to their ancestor. The real estate descended to them immediately on the death of the ancestor. The administrator or executor had nothing to do with the real estate, except the' power given him by statute, to keep the same in repair, and to sell, under the directions of the probate court, for the payment of debts-and legacies. It never was considered or supposed that he could maintain an action of ejectment to dispossess the heirs, or to be let into possession with them.

In the case under consideration, the lot in question had descended to and become vested in the heirs, more than half a century before the granting the letters of administra- ■ tion, and while they, as well as the land, were subject to another government, and could not be devested by any act of the probate court, granting administration.

The assent' of any or all the heirs to the granting of administration, could'have no effect on the title thus vested in them. More especially could not this assent have any effect, when we find a part of the heirs actually deeding their interest to Sumner, before any attempt was made to take out letters of administration. Sumner, by his tenant, the defendant,Jordón, held the lot in question for himself and the other heirs,-as tenant in common with them, and-this administrator cannot disturb him in the possession, or evict him therefrom, or any part thereof. As- this-view of the case is fatal to the plaintiff’s-title, in any event; it is unnecessary to consider the other titles relied on by the defendant..

The judgment of the county court is reversed.