199 Mich. 569 | Mich. | 1917
The history of this case is a long story. On a previous occasion another phase of the controversy was before this court, and is reported in Barney v. Barney, 187 Mich. 145 (153 N. W. 730), where an extended statement will be found. In view of this, only such of the history as seems to be material to the present case will be stated.
In the year 1900 Oliver Barney, an old resident of Calhoun county, died, as was supposed at that time, intestate. In August, 1898, he deeded his farm to his grandson, Oliver Wm. Barney, reserving a life interest to himself and wife. In July, 1900', an ad
At the outset of our examination of the case we are met with defendant’s contention that the administrator has not such an interest in the real property of the estate as entitles him to maintain ejectment. The statute which gives the administrator authority to take possession of the real estate provides that:
“(9354) Sec. 7. 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 lease the same from year to year, and cancel or modify any existing lease or leases given by the deceased in the same manner that the deceased might have done in his lifetime, 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: Provided, That whenever, on application of the heirs, or devisees, or any of them, it shall be made to appear to the said probate court that there are no debts or liabilities outstanding and unpaid against said estate, or that the personal estate of said deceased is amply sufficient for the payment of all claims or liabilities outstanding or allowed against the said estate, the said probate court shall thereupon, by order, deliver over the said real estate of said deceased to the heirs or devisees of said estate, although the said estate shall not then have been finally settled, and thereupon the right of the said executor or administrator to the possession of the real estate of said deceased, and to receive the rents, issues and profits thereof shall cease: Provided further, That the provisions of this act shall not be construed to interfere with the possession of the homestead.” 3 Comp. Laws, § 9354 (3 Comp. Laws 1915, § 13850).
This statute has been construed by this court on numerous occasions. O’Connor v. Boylan, 49 Mich. 209 (13 N. W. 519); Kellogg v. Beeson, 58 Mich. 340
“It will be noticed that, while the executor has the right to the possession, that right is given in contemplation that it may become necessary to exercise it in the settlement of the estate for the purpose of the payment of claims against the estate. Hence it_ is that the duty of the executor is not made imperative to exercise the right in all cases, but is only permissible when the necessity arises for its exercise, and until such occasion does arise the heir or devisee, who has entered upon the enjoyment of his property and estate, ought not to be and cannot be lawfully disturbed. In other words, the right is given to the executor, and only accompanies the necessity for its exercise.”
The holding in Pratt v. Millard, supra, is that:
“An administrator, either general or special, has no interest in the real estate, and no right to the possession thereof, except when there is insufficient personal property to pay the debts and expenses of administration.”
The conditions present in the estate we are considering must be tested by this rule. The evidence discloses neither personal property nor debts. It did appear that some expenses had been incurred in administering the estate, but counsel for defendant meets this claim by pointing out that if there were expenses incurred in administering the estate, they had neither been passed upon nor allowed by the probate court,
The judgment must be reversed, with no new trial, but the reversal will be without prejudice to an action of ejectment by any one who has sufficient interest in the premises to maintain it. Defendant will recover his costs in this court.