| Ala. | Jan 15, 1855
—According to the common law, as it hath been as far back as the reign of Henry "VI, if one devise that his executors shall sell his land, and die seized, his heir is in by descent, and consequently the executors have only a power ; but if one devise his land to his executors to sell, then the freehold passes to them by the devise. “ This distinction”— namely, between a devise of lands to executors to sell, and a devise that executors shall sell the land — is mentioned by Justice Doderidge as a “ common difference”, and it received the sanction of Littleton and Coke and of modern determinations.—Litt. § 169; Co. Litt. 113 a, 181 b; Honnell v. Barnes, Cro. Car. 382; Yates v. Compton, 2 P. Williams 308; 4 Kent's Com. 320; Peck v. Henderson, 7 Yerger's R. 18; Jackson v. Schauber, 7 Cowen’s R. 187; Ferebee v. Proctor, 2 Dev. & Batt. Law Rep. 439.
But in Masterson v. Girard's Heirs, 10 Ala. R. 60, it is coihectly said by the court, “we have many statutes, which seem together to constitute a system, and create some important modifications of the common-law incidents of descents. Thus, by a general statute, the real estate of a decedent is made chargeable with his debts ; and by several others, the administrator is invested with the power to proceed in the Orphans' Court, so as to obtain a decree for the sale of the lands, when the personal estate is insufficient to pay debts, or for the purpose of making more equal distribution between the heirs. * By our statute of descents and distribution, the real and personal estates go to the same person, when the debts are paid.” By the act of 1839, (Clay's Dig. 199, § 36,) it is made lawful for administrators and executors to rent, at public outcry, the real estate of any decedent, until a final settlement of said decedent’s estate is effected, and the proceeds are made “ assets in the hands of such executors or administrators.” By the act of 1806 (Clay’s Dig. 597, § 7)
The former decisions of this court warrant us in stating, that since the enactment of the several statutes above referred to, the law in this State, upon the subject now under consideration, is as we now proceed to lay it down. •
The real estate of a decedent, not devised to his executors, nor to any other person, descends to his heirs-at-law, who instantly are invested with the title, and may exert it, .with all its incidents, until the administrator, b'y actual suit, or in some other legal mode, indicates his intention to assert the power reposed in him by statute. The title or right of the heirs is subject to the exercise of the statute power. If the estate has not been reported insolvent, the administrator may maintain ejectment, or any other suit which may be necessary and proper to regain the possession of the land. As between the administrator and heirs, the latter are not responsible for rents received, or damages, until the statute power is asserted in 'some lawful mode; on the principle, that in law they are the owners, and may lawfully expend the usufruct, until advised of the necessity to apply it otherwise. This principle, however, will not exonerate any person, except the heirs and those holding rightfully under them, from responsibility to any extent or for any period, to the administrator, for damages, or rents and profits. If the estate has been reported or declared insolvent, no suit thereafter commenced by the administrator, to recover possession of the lands, can be maintained. Masterson v. Girard’s Heirs, 10 Ala. R. 60; Harkins v. Pope, 10 ib. 493; Long v. McDougald’s Adm’r, 23 ib. 413; Golding v. Golding, 24 ib. 122.
As the will of the testator, shown in this case, does not devise his real estate to his executors, nor to any other person, and as the rents and profits of said real estate, accruing since his death, are not disposed of by the will, and as the estate is solvent, it follows necessarily from what is hereinabove contained, that the executors (who have not yet exercised the power to sell the lands, conferred on them by the will) may
A misjoinder of plaintiffs, in an action like this, will defeat a recovery.—1 Chitty’s Pl. 66; Adams on Ejectment, p. 209, and notes.
But there is no misjoinder of plaintiffs in this case. The executors might well join with the tenant in common of their testator.
The charge of the court below is opposed to the law herein-above stated, and its judgment is therefore reversed, and the cause remanded.