27 Neb. 634 | Neb. | 1889
This cause is brought to this court on error to review the judgment of the district court of Nemaha county.
The plaintiff in error, John H. Dundas, administrator of the estate of Peter B. Borst, on November 4,1885, com
On December 7, 1885, the defendants, Carson and Gillen, filed demurrers to the petition, because the court had
On March 31, following, they demurred to the petition as follows:
1. That it does not state facts sufficient to constitute a cause of action against defendants.
2. That the plaintiff has no legal capacity to sue herein.
3. That this court has no jurisdiction of the action.
Upon the argument of the demurrers to the petition they were sustained by the court and judgment against the plaintiff for costs, to which exceptions were duly taken, and errors were assigned:
First — That the court erred in sustaining the demurrer.
Second— In rendering judgment against the plaintiff.
It is admitted by the pleadings, in the issue in the court below, that the allegations of the petition are to be taken as true; that the plaintiff in error is the administrator, under the laws of Nebraska, of the estate of Peter B. Borst, late of Page county, Virginia, who died intestate and in
But it is denied by the defendants that the court below had jurisdiction of the plaintiff’s action at law, in the nature of ejectment, for the recovery of his intestate’s real estate, or that the plaintiff could maintain such an action, or that a sufficient cause of action had been set up.
It is not to be disputed that at common law the defendants’ arguments would prevail; that the title to the real estate would descend at once to the heirs and next of kin, and the right of possession follow, subject to any paramount lien for the debts of the deceased which might exist, and that the administrator could have no concern with it.
But that rule of the common law has been changed in this state by the statute providing for the settlement of the estates of deceased persons: “ That if the goods, chattels, rights, and credits in the hands of the executor or administrator shall not be sufficient to pay the debts of the deceased and the expenses of administration, the whole of his real estate, except the widow’s dower, or so much thereof as may be necessary, may be sold for that purpose by the executor or administrator, after obtaining license therefor, in the manner provided by law.” (Sec. 201, ch. 23, Comp. Stats. 1887.) The succeeding section of the law (202) further provides that “ the executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents, issues, and profits of the real estate until the estate shall have been settled, or until delivered over, by order of the probate court, to the heirs or devisees, and shall keep in good tenantable repair all houses, buildings, and fences thereon which are under his control.” Taking the
This view of the case is supported by the decisions of the courts of other states where the same statutory provisions are found. In California, during administration of an estate, and until distribution, the executor or administrator is entitled to the possession of the real property, and may recover it from the heir or devisee. (Page v. Tucker, 54 Cal., 121.) In Michigan the statutory right of the administrator, before final settlement, to the possession and to the rents and profits of the real, property may be enforced by ejectment. (Kline v. Moulton, 11 Mich., 370.) The same prevails in Minnesota. In the case of Miller v. Hoberg, reported in 22 Minn., 249, the court held that, under see. 6, chap. 52, of the statutes of that state, (which is precisely the same as sec. 203 of our statute, above quoted,) “The plaintiff’s legal capacity to sue depends on his character as administrator, and not on his right to recover for the cause alleged in the complaint. His right to the possession, if he has, any, is sole, and exclusive of the right of the heirs, and is not a joint right. * * * The heirs have the right to the possession as against every one but the administrator or his tenants. He has the right to the possession as against the heirs, or any other persons, until
Section 2904 of the Comp. Statutes of Michigan is in like terms of sec. 202, in this case, and was frequently reviewed by the supreme court of that state. In Marvin v. Schilling, 12 Mich., 361, the court said: “In Streeter v. Paton [7 Id., 341] we had occasion to consider the effect of this statute on the rights of the heir, and came to the conclusion that the statute did not interfere with the descent of the real estate to the heir, and his right to take possession, or bring ejectment therefor against any one, except the administrator or some one in possession under him, and that the object of the statute was to permit the personal representative of the deceased to take possession of the real estate and hold it until it should be sold by him under a license of the probate court, or the final settlement of the estate if he thought proper to do so, unless ordered to deliver it over to the heir by the probate court.”
Again, in considering the same question, in Campau’s case, 19 Id., 116, the court said: “It is a mere statute
While the legal construction of section 202 of chapter 23 has not heretofore been brought to this court for consideration, the authorities cited, and that construction given to the same provision in other .states, may be regarded as a settlement of the question here — of the legal authority of the administrator of an insolvent estate to maintain ejectment, for the purposes of administration, against all occupying claimants of the real estate of which his intestate died seized.
The demurrer is upon the grounds that the plaintiff has no legal capacity to sue; that the court is without jurisdiction; that there is a defect of parties in the omission of heirs of the intestate; and that the facts stated do not constitute a cause of action.
There is nothing in these grounds, if the views expressed and adopted in this opinion are correct, and therefore the demurrer in the court below should have been . overruled.
The judgment of the district court is reversed and the cause is remanded for further proceedings according to law.
Reversed and remanded.