35 Iowa 154 | Iowa | 1872
On the trial the defendant requested the court to give the following, among other instructions, viz.: “ If you find from the evidence that said property, when defendant took possession of it, was attached to the real estate in the form of a saw-mill, dam, etc., it was a part of and belonging to the real estate, unless you further find that it was placed there by virtue of a lease with a right to remove at the end of said lease, or was put there by consent of or with the knowledge of the owner of the real estate and without his objection; and unless it was so put there under a lease or with the consent or knowledge of the owner of the said real estate and without his objection, it was in contemplation of law a part of the real estate; and in order to entitle plaintiff to recover he must show such lease from said owner, or knowledge on his part of said improvements.”
The court refused to give the instruction, and this ruling is assigned as error. This instruction should have been given. The evidence tended very strongly, to say the least, to show that the mill was a part of the realty. It was erected by one who, at the time, claimed to be owner of the land on which it was situated, and it was built in a permanent manner, “ partly in the bed of the river and partly in the bank,” the injury to the mill, therefore, would be an injury to the real property, and the right of action would accrue to the heir and not to the adminis
It is too well understood to require the citation of authorities that the real estate of the intéstate descends to the heii's at law, and that the personal property only goes to the administrator, unless the latter proves inadequate for the payment of the debts of the intestate when under the statute the administrator may be empowered to sell enough of the real property to make up the deficit. (See Rev., §§ 2374, 2375.) An administrator has no right to receive the rents of real property accruing after the death of the intestate. Foteaux v. Lepage, 6 Iowa, 123, 130; Lepage v. McNamara, 5 id. 124; Beezley v. Burgett, 15 id. 192. At the common law the administrator had no control over the real estate or over the rents and profits thereof, and such is still the law except where the statute provides otherwise.
Under the statute the administrator may maintain an action of forcible entry (Rev., § 3954); and by chapter 139 of Laws of 1866 it is provided, that “ if there be no heirs or devisees of a testator or intestate present, or competent to take possession of the real estate left by such testator or intestate, the executor or administrator of his personal estate may, as trustee for the proper heirs or devisees, take possession of such real estate, and demand and receive the rents and profits arising therefrom, and sue for and receive the same, and do all other acts and things relating to such real estate which may.be for the
"Whether under this provision of the statute an action for an injury to the real estate may be maintained by the executor or administrator we need not decide, for it is apparent that this action is not intended to be brought thereunder. The administrator or executor may, “ as trustee for the proper hevrs or devisees,” take possession and collect the rents and profits, etc., only when there are “ no heirs or devisees of the testator or intestate present or competent to take possession.”
When acting under this statute the executor or administrator does so “ as trustee for the proper heirs or devisees,” and for their use and benefit, and not simply in his capacity as executor or administrator; and when suing under this provision, the existence of the facts which authorize him to sue for their benefit should be averred, viz.: That there are no heirs or devisees present or competent (as the case may be) to take possession.
The judgment of the circuit court is
Reversed.
