72 Ark. 272 | Ark. | 1904
(after stating -the facts). This is a suit by minor heirs to recover lands, and the rents and profits of the same, which were at the time in the possession of the appellant as lessee under one W. W. Carloss, who, acting for the owner thereof, one Mrs. A. Alexander, in her lifetime had leased the land for five years to the appellant, Arlyn Hopson, for $175 per annum, and certain specified improvements to be made by said Hopson. Said lease was made on the 19th of January, 1900. Mrs. Alexander died' on the 24th of May, 1900, and on the 29th of September, 1900, letters of administration were issued to W. W. Carloss on her estate, and thereafter Carloss held said estate by virtue of said letters for the payment .of the debts thereof, there having been probated debts against said estate which were still unpaid at the date of the institution of this suit.
The contention of plaintiff is that the evidence in the case shows that Carloss leased the land to Hopson without authority, that the renting was not approved and ratified by Mrs. Alexander in her lifetime, that Hopson did not hold the land under the administrator, and that the heirs are not entitled to recover. The evidence in the case ,1s that Carloss, when he administered, filed an inventory of the estate of Mrs. Alexander, in which he returned the notes executed by Hopson for the rent of-the land for the five years as assets of said estate. It also appears in evidence that Hopson, on the 5th of November, 1900, had paid the first note for $175. So it appears that Carloss, as administrator, recognized the previous renting of the land to Hopson, the appellant, and had collected the rent for 1900, and that he treated the rent as part of the assets of Mrs. Alexander’s estate. Upon the death of Mrs. Alexander the legal title to her lands descended upon and vested in her heirs at law, subject alone to the payment of her debts. The right of the administrator to the possession and control of her lands continues until the debts are paid and the administration closed, and to enforce this right he may maintain and defend ejectment. Culberhouse v. Shirey, 42 Ark. 25. Real estate is, by statute, assets in the hands of an administrator for the payment of debts, and he is entitled to possession for that purpose. Sisk v. Almon, 34 Ark. 391. The defendant, the appellant, was in possession by the consent of the administrator, and was paying rent, which was treated by the administrator as assets for the payment of debts of the estate, and the administration had not been closed nor the debts been paid.
The judgment in this case was clearly erroneous, and the same is reversed, and remanded for a new trial.