Kline v. Moulton

11 Mich. 370 | Mich. | 1863

Manning J.:

The alleged errors may be reduced to two:

First, That the facts found by the Court show, that Albert G. Moulton administered on the possessory right he had in the land, as administrator, by a sale thereof to the plaintiff in error.

Second, That the defendant in ex'rox’, who is administrator de bonis non, did not show on the trial that the rents, issues and profits of the land, were needed to pay the debts of the estate and expenses of administration.

Kline claims to be the owner of the administrator’s light of possession under a contract between him and Albert G. Moulton, the first administrator, for the purchase of the land. This contract is signed and sealed by both parties, and is a bond in the penal sum of two thousand dollars, conditioned that Moulton should by a good and sufficient warranty deed convey the premises to Kline, by a certain day, on Kline’s making certain payments on and before that day, and giving his promissory note for a certain sum secured by a mortgage on the premises. Kline is in possession under this contract, but it is not executed by Moulton as administrator. It is insisted, however, that it is not necessary it should be to convey the administrator’s interest in the land, which interest is likened to a personal chattel belonging to the estate, which the administrator may sell as well in his own name, as he can as administrator.

If the administrator’s right to the possession of the land could be regarded as a personal chattel, the argument would be conclusive if the contract in other' respects is one that would bind the estate, about which it is not our intention to express an opinion.

The possessory interest of the administrator is not a personal chattel. It is not treated as such by the statute. It is not inventoried and appraised, or required to be accounted for at its appraised value, or whatever it may be sold for, and there is nothing in the statute authorizing it to be sold. It is, we think, clear from the whole statute that it is not given to the administrator to be sold by Mm, but to enable him to receive the rents, issues and profits of the land — for which he is required to account-while the estate is being settled, and for no other purpose. He may let the real estate, or if it was let by the decedent, he may receive the rents; but he can make no disposition of it, by letting or otherwise, to interfere with the settlement of the estate, or the sale of the land for that purpose Under an order of the Probate Court. And on the death or removal of the administrator, his possessory right, and the rents and profits connected with it, pass to his successor, or the administrator de bonis non.

On the other point the statute is too clear and explicit to admit of a doubt. We can not make it more clear by anything we can say. It says: The executor or administra tor shall hate a right to the possession of all the real as well as personal estate of the deceased, 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:— Comp. L. § 2904.

The judgment of the Circuit Court must be affirmed, with costs.

The other Justices concurred.