6 Me. 127 | Me. | 1829
delivered the opinion of the Court at the ensuing July term in Waldo.
The demanded premises are a part of a large real estate, of which Charles Webber died seised ; and Harwell, the administrator on the • estate of Jeremiah Webber, one of the sons of Charles, having obtained judgment against the tenant, as administrator on the estate of Charles Webber, caused the execution issued thereon to be duly extended upon the premises demanded, and other parcels of real estate, on the 27th of September 1824; which execution was returned seasonably, and the same, with the proceedings, was also seasonably registered. The demandants are children of said Jeremiah ; and the extent of the execution is the basis on which their right and title to maintain this action reposes.
Several objections have been urged against the claim of the de-mandants, independent of that which grows out of the evidence on the part of the tenant. The first 1$ that the description of the demanded premises is too vague and uncertain, inasmuch as a part of
The second is that as the estate of Charles Webber has never been divided among his children and heirs, and as the tenant was grantee pf an undivided moiety of the premises, FarwelVs execution should have been extended on a part of the estate in common, and not in severalty, This objection might have been good, had the judgment and execution been against George, the tenant, in his private capa-r pity, and the object been to levy on his part of the estate, descended from his father, Charles Webber; but such was not the fact. The estate was levied upon, as the property of Charles Webber, who oymed and died seised of it in severalty; and the title of the de-mandants, if maintained, is paramount to that of the heirs of Charles Webber.
The third objection is, that the heirs of Jeremiah Webber, cannot by law maintain this action, but that it should have been brought in the name of Farwell, the administrator. The provisions in our Slat. 1821, ch. 52, respecting the extent of executions by an executor or administrator on real estate, are similar to those which for a long time have existed in Massachusetts. The language is, that when lands or other real estate are set off on execution to an executor or administrator, in satisfaction of a debt due to the testator or intestate, the executor or administrator “ shall be seised and possessed of the whole estate in the lands, tenements or hereditaments so set off, to
These facts seem to bring the present case not only within the spirit, but the very language of the court, in (he opinion in Boylston adm’r v. Carver; and clearly to present the heirs as entitled to count on their own seisin, for their proportion of the property, as they have done in this action ; there being no reason or legal necessity for considering the estate as a trust estate, still remaining in the administrator, when no claims to the property exist on the part of any one, paramount to those of the heirs at law. If when all such claims have ceased to exist, by having been satisfied or extinguished, the legal estate does not vest in the widow and such heirs immediately, it would seem impossible to fix on any period when . their rights to demand and possess their inheritance shall be perfected. It is said by the counsel for the tenant, that the heirs may, by a bill in equity, compel the administrator to convey. Supposing they have this remedy, why are they to incur the expense of it, when the fee may vest in them without it, as the court clearly considered, in the above case of Boylston adm.’r v. Carver, that it does, when the events, specified in their opinion, have taken place ? A use need not always be executed the instant the conveyance is made; the opera-ion of the statute may wait till the use shall arise from some future
We proceed in the fourth place to examine the title of the tenant. He claims to hold one undivided moiety of the premises demanded, in virtue of the deed made to him by Jeremiah, the intestate, on the 28th day oí December, 1819, and the covenants therein contained. It is agreed that Charles Webber died seised of the premises demanded, and it does not appear that Jeremiah had any title thereto, except as one of the children and heirs of Charles Webber ; and of course that descended to him, subject to the payment of the debts of the deceased ; and the levy of FarwelVs execution has completely divested whatever rights the tenant had under the deed, unless they are secured to him by the principle of estoppel and rebutter, founded on the covenants in Jeremiah’s deed to the tenant. This deed contains the usual covenants of seisin and warranty, excepting that the covenantor professes to bind himself only, and not his heirs, execu
Several objections have been urged by the counsel for the de-mandants, with the view of shewing that the principle above stated is not applicable to them, though it might have been to their father, had he been living, and instituted such an action as this against the present tenant. Ir is contended that the premises demanded were never the property of their father, and that therefore their title is not by descent to them as his heirs, but that they hold the title as purchasers; and that in legal contemplation they hold it as absolutely as though the estimated value of the premises had been received of the administrator on Charles Webber’s estate, by the administrator on their fathers estate, and the same had been decreed and paid to them ; and then they had, with the money, purchased the land in question ; and that the principle of rebutter in the case at bar, is no more applicable than it would be in the case supposed. The Slat. 1821, ch. 52, sec. 16, makes the real estate levied upon and set off to an executor or administrator assets, liable for the payment of the debts of the testator or intestate ; and thus far, at least, it is placed in the same situation and subject to the same liabilities as though their father had died seised of the land, and it had descended to them as
We are all of opinion that the title of the demandants is maintained, and that there is no legal defence ; and in as much as the premises were appraised at their value at the time of the levy, and on that principle set off to the administrator, it is evident that the heirs - of Jeremiah, the intestate, have paid the full price of the improvements made on the laud, by having the increased value of the premises, occasioned by such improvements, applied in part satisfaction of Harwell’s execution ; and as they have thus allowed and paid for them once, they ought not to be held to pay for them again. It is true the improvements were made by the tenant at his own expense, and the sum paid for them was accounted for and paid to the tenant as administrator on the estate of Charles Webber; and as that estate has received the benefit of that sum, wo perceive no objection to his claiming it of the estate and having it allowed to him by the Judge of Probate, The defendant, according to agreement, must be called. Defendant defaulted.
See Chadwick & al. v. Webber & al. 3 Greenl. 141.