Heald v. Heald
5 Me. 387
Me.
1828
Check Treatment
Mellen C. J.

delivered the opinion of the Court.

The statute of this state, ch. 51, sec. 22, under the authority of which the proceedings in this case originated, is similar to that in Massachusetts; which has often been the subject of examination and judicial construction, both before and since our separation from the parent Commonwealth ; and it is therefore proper and useful to have respect to those decisions in determining the case before us. It seems well settled that though an administrator has no legal right to enter into possession of the real estate of which his intestate died seised* *389becau.se it lias descended to bis heirs at law j still, when he does so enter and improve it, he is accountable to those heirs for the rents and profits. Ii the estate is solvent, they are entitled to the estate itself and its income ; if insolvent, the creditors are only entitled to the estate of which the intestate died seised ; and not to the rents and profits after his death; for these belong to his heirs. Gibson v. Farley 16 Mass. 280. fn the present case the administrator occupied the estate for a year, and the commissioners have reported the amount for which he ought to stand chargeable, and the Judge oí Probate has accepted their report and decreed accordingly. The question is whether the decree ought to be affirmed or reversed. We are satisfied that that it ought not to be reversed on the ground that the claim of the heirs has been barred by the statute of limitations. The words of that statute confine its application to civil actions, or common law proceedings. In other cases of special jurisdiction or process, the limitation depends on special provisions; as in cases of writs of error — petitions for review —grants of administration and the like. The statute under consideration imposes no limitation on the powers of the Judge of Probate in respect to the time of exercising his jurisdiction in a case like the present.

As to the merits of the claim of the heirs, we would observe that we are to consider the facts such as to have authorised the exercise of jmisdiction by the Judge of Probate ; both parties appeared before him and were heard ; and the amount of liability was sanctioned, by his decree. The statute is silent as to the fact whether the occupation of an administrator, to bring it within the cognizance of the Judge of Probate, must be under a contract express or implied ; though the case in 1 Pick. 157, seems to proceed on the ground that such contract is necessary to give the jurisdiction. We do not mean to decide this point, because we think the case furnishes evidence of an implied contract between the heirs and the administrator. There is no proof that he entered and occupied wrongfully ; on the contrary several of the heirs, who were of age, lived in the neighborhood, and must have known and assented to the occupation. The minor children were living on the land. The case furnishes no proof of a claim of right by the administrator j as in the case of Wyman vs. *390Hook, 2 Greenl. 337, where the person attempted to be charged ia assumpsit on the ground of an implied promise, entered under a defective levy of an execution, and claimed a right to hold under it as a valid one. It does not appear who was the guardian of the minor children. If the administrator was, and he has any claim for their support during the year he occupied the farm, he must adjust that matter with the Judge of Probate. If any one else was the guardian, he must look to him for satisfaction. On the whole we do not perceive any sound reason for disturbing the decree. And accordingly our opinion is that it must be affirmed, with costs for the appel-lees, and the cause be remitted to the Judge of Probate for further proceedings in conformity to this decree.

Decree affirmed.