29 Minn. 418 | Minn. | 1882
Lead Opinion
This action was brought by plaintiff, as adminis-tratrix of the estate of John Noon, deceased, to recover damages for trespass committed upon the real estate of her intestate subsequent to his decease. The complaint does not allege that plaintiff has ever asserted her right as administratrix by taking possession of the real estate of the intestate. Neither does it allege that the heirs have not gone into possession, nor that the land is vacant or unoccupied. The action was, on motion of-defendant, dismissed on the pleadings, and from the judgment entered thereon plaintiff appeals. The case, therefore, presents squarely the question, whether a personal representative who has never asserted his right under the statute 'by taking possession of the real estate of the deceased, can maintain an action for trespass committed thereon post mortem decedentis?
At common law such an action could be maintained only by the heir or devisee. But the contention is that this rule is now changed’ by statute. The first statute which plaintiff cites as authority for her right to maintain this action is Gen. St. 1878, c. 52, § 6, which reads as follows: “The executor or administrator has a right to the possession of all the real, as well as personal estate of the deceased. * * -*•» yye adopted this statute from Wisconsin, which had previously obtained it from Michigan.’ In these states it has been decided that this statute is not imperative, but merely permissive, and that it does not exclude the possessory right of heirs or devisees; that the right of possession is in the heir until the personal representative asserts his right and takes possession; that, on the death of the intestate, the lands descend, as at common-law, to his heirs, who may maintain ejectment against third persons, if the personal representative has not taken possession; that the personal representative takes neither title to nor interest in the land, except the mere right to take possession during administration, if he sees fit to do so. Streeter v. Paton, 7 Mich. 341; Marvin v. Schilling, 12 Mich. 356; Campau v. Campau, 19 Mich. 116; Edwards v. Evans, 16 Wis. 193; Jones v. Billstein, 28 Wis. 221; Flood v. Pilgrim, 32 Wis. 376; Marsh v. B’d
The following propositions are, in our opinion, fairly and naturally deducible from the views already expressed: (1) The possession of real estate prima facie devolves upon the heirs or devisees. (2) The personal representative may take possession. (3) Until he does, the heirs or devisees alone can sue for trespasses post mortem decedentis. (4) When he does take possession, the personal representative must sue for the trespass, his possession relating back to the death of his decedent, unless the heirs or devisees have already sued. (5) If the heirs or devisees have already, commenced suit, the personal representative, when he takes possession, has a right to be substituted. If they have recovered before he takes possession, upon his taking possession, if the amount recovered is needed to pay debts, he would be entitled to the benefit of the judgment, or, if it has been already collected by the heirs or devisees, to demand that the amount be paid ■ over to him. (6) If it appear that the land is vacant, the bringing of the action by the personal representative for the trespass would amount or be equivalent to taking possession. Ouf conclusion, therefore, is that there is nothing in this statute that will help out the complaint in this action.
These, and other illustrations that might be cited, -show that the common-law doctrines of executors de son tort were inconsistent with
If it be suggested that this construction of the statute is based upon a narrow common-law definition of an executor of his own wrong, by which it was limited to an intermeddler with the personal estate, and which is not now applicable to a state of things where the personal representative may have the possession of the realty as well as the personalty, it may be answered that this common-law definition was certainly appropriate and correct under the condition of things which existed when the statute was first enacted, and was the only one which the law-makers could have had in mind. Moreover, whatever may be the character of the property, the intermeddling with which will now
The suggestion that, in case of insolvent estates, this construction of the statute might leave creditors remediless in case of trespass committed after the death of the decedent, is, we think, without force. It is well settled that, for certain purposes, letters of administration relate back to the time of the death of the intestate, so that an administrator may have an action for trespass or trover for the goods of the intestate taken before letters were granted him, and after the death of his intestate. As the statute now permits the personal repre-' sentative to claim the possession of the real as well as the personal estate, there is no reason why, upon the same principle, the possession of the realty will not, under his letters of administration, also relate back to the death of the intestate, and thus enable him to maintain an action for trespass committed before he took possession, or even before his letters were issued.
Our conclusion, therefore, is that the complaint in this action was materially defective, and did not state a cause of action in the plaintiff.
. Judgment affirmed.
Dissenting Opinion
dissenting. I think the plaintiff may maintain the action. Though the title to real estate does not vest in the executor, yet it is subject to the demands of administration. When necessary, the rents, issues, and profits, and the value, may be resorted to as a sort of secondary fund for payment of debts and legacies, and, with a view to that end, the statute vests in the executor the right to its possession, and to the rents, issues, and profits, and to have it sold when necessary. He may take such possession, and receive the rents, issues, and profits, in anticipation of their being
The theory of the statute is that the entire estate, real and personal, as it exists at the time of the death, with the increase, shall be used; the personal property, with its increase, first, and then, if necessary, the rents, issues, and profits of the real estate, and the proceeds of its sale, in settling the estate and paying debts and legacies. This, of course, has to be done through the executor or administrator. It would seem inconsistent with this theory that in any case one might destroy or impair the value of the real estate, so that rents, issues, and profits should be prevented or diminished without any liability to the executor or administrator. I do not think it would be too liberal a construction of the statute, even leaving out section five of chapter 77, to hold that in such case the executor or administrator may recover for the damage done to the estate, to hold the amount recovered, as he would hold rents, issues, and profits, for payment of debts and legacies, if necessary, and, if not, for those entitled to the real estate. When construed with reference'to the general tenor of the statute, I think that section conclusive of the right to recover. If the purpose of the section were merely to abolish the doctrine as to executors de son tort, the first two lines are sufficient, and the last three are unnecessary. They could hardly have been inserted merely to declare the right of the executor to sue for injuring or intermed-dling with personal property, for that right existed at common law. The language imports something more than that, and, the statute being remedial, there is no apparent reason for attributing a meaning less than the language implies. It declares that,, for interfering with the property, the person so interfering is responsible to the executor, or general or special administrator, of such deceased person for the value of all property so taken or received, and for all damages caused by his acts to the estate of deceased. The section does not specify either personal property or real property; it uses only the general terms “property” and “estate,” words which include as well real as personal property. My construction of the section is that it intended to give the right of action for injuries' to the “estate,” of