Kent v. Bothwell

152 Mass. 341 | Mass. | 1890

Knowlton, J.

To maintain an action of replevin for goods, the plaintiff must prove his general or special property in them, and a right to immediate possession.

Upon causes of action which accrued in the lifetime of the testator or intestate, an executor or administrator must sue in his representative capacity, but in general, upon those founded on transactions with himself, or on injuries to property occurring after his appointment, he may sue in his own name. The fact that he is accountable for the proceeds of the suit as assets of the estate does not necessarily preclude him from maintaining an action without reference to his official relation. The rule has generally been stated to be, that, for injuries to property committed after the death of the intestate, an administrator may, and properly should, sue as an individual; but if he chooses to make his claim in his official capacity the action will lie. 2 Greenl. Ev. § 338. Carlisle v. Burley, 3 Greenl. 250. Foster v. Gorton, 5 Pick. 185. Bollard v. Spencer, 7 T. R. 358. Knox v. Bigelow, 15 Wis. 415. It has sometimes been held, that to maintain trover in his own name the administrator must have had actual possession, but the great weight of authority is now otherwise, the action being made to rest on his right of property, which draws after it the right of possession. Bollard v. Spencer, 7 T. R. 358. Hollis v. Smith, 10 East, 293. Gray v. Swain, 2 Hawks, 15. Carter v. Estes, 11 Rich. (S. C.) 363. Kerby v. Quinn, Rice, (S. C.) 264.

Upon an appointment of an administrator, the property of his intestate immediately passes to him by relation from the time of his intestate’s decease. While he holds en autre droit, he has the legal title, and may at any time make an absolute disposition of the property for which he is accountable on his official bond. He holds both the possession and the property as an individual, although he holds them under a kind of trust. An unlawful interference with the property to its damage is a disturbance of his possession for which he may sue in his own name, although under his trust he is accountable for the damages recovered. In like manner, it should be held, when a plaintiff must establish a title, that an administrator’s right to the chattels of the intestate is a sufficient property for the maintenance of an action.

None of the cases which have been, brought to our attention refer to any distinction between replevin and actions for injuries ■ to property, in reference to an administrator’s right to sue in his own name; and his right so to bring a suit in replevin has been sustained by direct adjudication in New York and in Florida. People v. Judges of Mayor’s Court, 9 Wend. 486. Patchen v. Wilson, 4 Hill, (N. Y.) 57. Branch v. Branch, 6 Fla. 314.

The property of the plaintiff, as administratrix, was sufficient to enable her to maintain her action; and the ruling at the trial was correct. Exceptions overruled.