Robbins v. Gillett, 2 Chand. 96

Robbins v. Gillett

2 Chand. 96 | Wis. | 1850

WhitoN, J.

This was an action of trespass guare clausum fregit, brought in the county court of La Fayette county, by the plaintiff, as the administrator of the goods, etc., of Benoni R1. Gillett, deceased.

By chapter 69, section 7 of the Revised- Statutes, it is provided that the executor or administrator, shall have a right to the possession of all the real, as well as the personal estate of the deceased, and may receive the rents, issues and profits, etc.

Under this section, the plaintiff claims the right to maintain this action.

The declaration contains two counts, to which a .demurer was' interposed; the demurrer was overruled by the court, and a judgment rendered for the plaintiff.

’’VVe are satisfied that the judgment is erroneous. The first count charges that the defendants broke and entered the close of the plaintiff, “ administrator as aforesaid,” and throughout, alleges the injury to have been done to the plaintiff’s close. The addition of the words “ administrator as aforesaid,” does not alter the nature of the allegation, as these words are a mere descriptio personae. Myers v. Cole, 12 Johns. 349.

The second count, on the contrary, sets forth an injury to the land belonging to the estate of the deceased, and contains an averment that the plaintiff was duly appointed adminis*441trator, etc. It is clear that damages recovered for the injury complained of in this count, would be assets in the hands of the administrator, while those recovered in the first count would not be. Formerly it was held that an executor or administrator could not join a cause of action accruing to the testator or intestate with one accruing to himself in his representative capacity; but now the better opinion seems to be that whenever the money, when recovered, would be assets, the executor or administrator may declare for it in his, representative character. Williams on Ex’rs, 1329 ; 8 Wend. 530. But when he sues in this character, he cannot join counts on causes of action accruing to him individually with those'which have accrued to him as executor or administrator. 1 Chitty’s PI. 234. The declaration in this case is therefore bad for charging the defendants with a trespass to the land of the plaintiff, and also one tb the land belonging to the estate of the deceased, the action being brought by the plaintiff in his representative character.

Judgment reversed.