141 Ala. 200 | Ala. | 1904
The bill was filed in the chancerv court of Greene county by Hubbard Rudisill, as executor of John O. Woodward, deceased, against the defendant and appellant, Walter Griffith, having for its object the enforcement of the equity of redemption of
There was a demurrer interposed on several grounds, which was overruled, and the only error insisted on is, that the executor, — the will of the testator having conferred on him no special power to that end, — was without power to redeem the land in question from said mortgage. Defendant’s counsel say in their brief, that this is the only question presented for review, and no other is insisted on.
The bill shows that the testator died on the list day of December, 1902; that the will was filed by complainant in the probate court of Greene county, for1 probate, on the 3rd day of December, 1902, and was duly probated on the 5th of January, 1903; that on the 7th of that month, the complainant qualified as executor of said will, and took upon himself the administration of said estate, which is now in course of administration in said probate court. It is further shown, that on the 2nd of December, before the burial of the body of the testator, the defendant proceeded to advertise for sale the lands in question, under a power of sale in an old mortgage, which, as alleged, had been fully settled and paid by testator, and on the 29th of the same month, sold said lands under said mortgage, and through his agent became the purchaser of 'said lands for $611.00, and caused deeds to be executed, so as to convey the title to himself; and thereupon, took possession of said lands, and rented out a large part of them, and is now, by himself and tenants in possession of all of said lands, claiming to own the same. It is further averred that the foreclosure under said mortgage which had been fully paid, was a fraudulent device, gotten up to defraud and deprive the estate and heirs of deceased of said lands. This bill was filed, for the purpose stated, on the1 11th day of February, 1903.
Upon the death of the owner real estate passes, as at common law, to- the devisee of the testator or heirs of flip' intestate, subject to be intercepted by the exercise of the personal representatives, of the power conferred on them by statute in the mode and for the pur-’
By statute in this State, the powers of an executor or administrator at common law as to the lands of a decedent, have been greatly extended. He may rent the defendant’s lands, publicly or privately, as provided by section 154 of the Code. Lands may be sold by an executor, or by an administrator with the-will annexed, for the payment of debts, when the will confers no- power to sell for such purpose, or in case of intestates, when the personal estate is insufficient for the purpose. — Code, § § 155, 156. He may also petition and have the lands of the estate sold, when the same cannot be equitably divided among the heirs or devisees. — § § 157, 158, Code.
Executors and administrators are also required to give bond with sureties in a sum not less than double the value of the personal property, and double the estimated value of the rent of the real estate of the decedent> for a term of three years, or at the discretion of the judge of probate, in a sum not less than double the estimated value of the real and personal property of the estate.— § 66, Code.
Touching these questions, this court- has said: “The statutory system subjecting lands descended or devised to administration, rendering them liable to the payment of the debts of the ancestor or testator, conferring upon the personal representative authority to- rent them, or to intercept the descent, or the taking- effect of the devise, by obtaining from the court of probate a decree to sell them for the payment of debts, or to make equitable distribution to and among the heirs or devisees, has long been construed as vesting in the personal representative the right and capacity to- maintain all necessary suits to recover jmssession of them. ****** The effect of the statutory system, and the result of the decisions, is that the personal representative, because of the authority over the lands with which he is clothed, is entitled to maintain any action for the recovery of lands, which the heir or- devisee can by the common law
Lands are thus made assets of the estate for the pay-1 inent of debts, and the personal representative has the > right to possess and claim them, his claim dominating ■, that of the heir. “If made before the expiration of" eighteen [now twelve] months after the estate was eom-■mitted to administration, the heir is powerless to resist his claim of possession; for it cannot then be known with certainty that the lands will not be needed for the payment of debts.” After this period he has only a prima facie right of possession, overcome by the showing on the part of the heir or devisee, that the administrator or executor has no need for the possession of the lands, for the purpose of administration. — Banks v. Speers, 97 Ala. 569; Butts v. Broughton, 72 Ala. 294; 11 Am. & Eng. Ency. Law, 1039; 17 Ency. Pl. & Pr. 950; 2 Story’s Eq. Jnr. § 1023; 2 Jones on Mortgages, 1055.
In Michigan, executors and administrators are clothed with similar powers as with us over a decedent’s estate, to possess and control the same. An administrator of a decedent, filed a bill to; redeem lands from a mortgage, executed by his intestate. It was objected on demurrer, that the administrator had no power to redeem the lands, and that the heirs were the only parties that could do so. The court held that the administrator, being entitled, under the statute, to the possession of the lands of his intestate, had such an interest as entitled him to redeem. — Enos v. Sutherland, 11 Mich. 538.
Under the facts of this case, Ave hold that the executor for the purpose of administration had the right to redeem the lands and the court committed no error in so holding.
Affirmed.
