ered as realty even after foreclosure, the equity of redemption having the qualities of a legal estate.88

At common law all leasehold interests in realty are considered as personal property, and this applied to a leasehold even for a period of a thousand years or with the right of perpetual renewal.89 The period for which leases may now be made has been greatly restricted by statute, and a leasehold for an extended period under some statutes may be considered as realty. If the leasehold is realty, it passes, upon the death of the owner, primarily to the heir; if the leasehold is personalty, it passes to the executor or administrator who holds the legal title thereto during the course of administration.40

Under a valid and binding contract for the sale and purchase of lands, the vendor holds the legal title in trust for the vendee who in turn is a trustee for the vendor as to the purchase price. Upon the death of the contracting parties, the interest of the vendor passes as personalty and the interest of the vendee as realty."1

38 Cutler v. Meeker, 71 Neb. 732, 8 Ann. Cas. 951, 99 N. W. 514.

See § 256.

Where land has been mortgaged to the testator and the mortgage has been foreclosed and the property bought in by the executor, he has no power to mortgage the property, but must sell it and pay the money to the legatees as required by the will.-Goodwell v. Taylor (N. J. Ch.), 97 Atl. 569.

39 Orchard v. Wright etc. Store Co., 225 Mo. 414, 20 Ann. Cas. 1072, 125 S. W. 486. See § 255.

40 Orchard v. Wright etc. Store Co., 225 Mo. 414, 20 Ann. Cas. 1072, 125 S. W. 486.

A leasehold interest in which the unexpired term is less than one year, is personal property and subject to sale by the administrator.-Glaser v. Burns, 154 N. Y. Supp. 21.

41 Lewis v. Hawkins, 23 Wall. (U. S.) 119, 126, 23 L. Ed. 113; Hardin v. Boyd, 113 U. S. 756, 28 L. Ed. 1141, 5 Sup. Ct. 771; Cutler v. Meeker, 71 Neb. 732, 8 Ann. Cas. 951, 99 N. W. 514.

See §§ 244, 746.

§ 1468. Common Law Rule Is That Realty Passes Directly to the Heir or Devisee, Subject to the Right of Dower,

Etc.

Statutes have been enacted in most jurisdictions which have for their principal object the subjecting of real property to administration for such purposes as the statutes specify. These statutes vary greatly in detail. The statutes of descent and distribution generally merely designate the heirs or those who are entitled to succeed to the property of an intestate decedent, but do not affect the common law rule as to the rights of the heir to the real property. Such rights, if affected at all, are affected by the statutes which subject the real property of a decedent to administration by the court exercising probate jurisdiction. At common law the heir of an intestate had certain rights and such rights still prevail except as they have been modified by statute. Since the enactments in the various jurisdictions differ in character, it seems advisable to first consider the common law rights of the heir, and with such rights in mind, then to consult the statute of the particular jurisdiction involved. The common law rule is that upon the death of an intestate owner, the title to all real property possessed by him at the time of his demise vests immediately in the heir who is entitled to the possession thereof; and the heir is the only one who is entitled to bring actions at law or suits in equity concerning the realty, such as ejectment, trespass, action for waste, or a suit to quiet title or to set aside a conveyance secured from the decedent through fraud, undue influence or the like. The common law rule still prevails except where modified by statute, and in the absence

42 See generally, Shamblin v. Hall, 123 Ala. 541, 26 So. 285; Chowning v. Stanfield, 49 Ark. 87,

42

4 S. W. 276; Rose v. Withers, 39 Fla. 460, 22 So. 724; Holt v. Anderson, 98 Ga. 220, 25 S. E. 496;

of a statute to the contrary, the heir of the owner of real property dying intestate is entitled to the rents, issues and profits accruing after the owner's death.48

In the absence of a statute to the contrary, real property specifically devised and not charged by the testator in his will with the payment of debts or legacies, following the common law rule, vests in the devisee upon the death

43 See generally, Herron v. Comstock, 139 Fed. 370, 71 C. C. A. 466; Stovall v. Clay, 108 Ala. 105, 20 So. 387; Stewart v. Smiley, 46 Ark. 373; Estep v. Armstrong, 91 Cal. 659, 27 Pac. 1091; Cross v. 9, 80 N. E. 362.

of the testator," and the devisee is entitled to the rent:.. issues and profits of the real property which accrue after the testator's death.45 But in all cases, rents, issues and profits accruing from realty during the lifetime of the owner vest at his death in the executor or administrator as personal assets of the estate.1

The title of the heir, however, at common law was always subject to the widow's right of dower and the husband's right by curtesy and, under modern statutes authorizing an allowance to be made out of the decedent's estate for the support of the widow and family or setting aside or directing the selection of a homestead for the benefit of the surviving spouse and family of the decedent, the heir takes subject to such rights.47

44 Phelps v. Grady, 168 Cal. 73, 141 Pac. 927; Jones v. Treadwell, 169 Mass. 430, 48 N. E. 339; In re Duffy's Estate, 209 Pa. St. 390, 58 Atl. 840.

Title to the real estate of a deceased intestate vests immediately in his heirs, of a testate in his devisees. That title they may convey without administration, and this they may do whether they be domestic or foreign heirs or devisees. Phelps v. Grady, 168 Cal. 73, 141 Pac. 927.

45 Haynes v. McDonald, 158 Ill. App. 294; Loveless v. Erie Ry. Co., 35 Ohio Cir. Ct. 87.

46 Broadwell v. Banks, 134 Fed. 470; Palmer v. Steiner, 68 Ala. 400; Henry v. Stevens, 108 Ind. 281, 9 N. E. 356; Mills v. Merryman, 49 Me. 65; Clark v. Seagraves, 186 Mass. 430, 71 N. E. 813; Coberly v. Coberly, 189 Mo.

1, 87 S. W. 957; Matter of Foulds, 35 Misc. Rep. (N. Y.) 171, 71 N. Y. Supp. 473; In re Duffy's Estate, 209 Pa. St. 390, 58 Atl. 840; Woman's College v. Horne (Tenn. Ch.), 60 S. W. 609.

47 Farmer v. Ray, 42 Ala. 125, 94 Am. Dec. 633; Shamblin V. Hall, 123 Ala. 541, 26 So. 285; Calder v. Bull, 2 Root (Conn.) 50; Harrison v. Peck, 56 Barb. (N. Y.) 251; Carr v. Hull, 65 Ohio St. 394, 87 Am. St. Rep. 623, 58 L. R. A. 641, 62 N. E. 439.

The decree of the circuit court adjudging that Treadgold, as administrator of the estate of Emma N. Jones, is entitled to possession of the property is erroneous as against the tenant by the curtesy. The right to the possession against him can not be adjudicated until he has his day in court upon an issue tendered by the administra

§1469. Provisions of Owner's Will May Give Executor Powers as to Realty.

In the absence of a statute or provisions in the will granting additional powers, an executor or administrator has no authority to take possession of real property of the estate, to collect the rents, issues and profits thereof accruing after the death of the owner, or to lease, mörtgage, sell or otherwise dispose of the realty. Such powers, however, may be granted by statute or by provision in the owner's will. A testator may, by provisions in his will, vest the executor with such power or authority regarding the real estate as he may deem advisable. Thus an executor may be given the power to lease real estate, to mortgage the same or to sell it either at private sale or public auction. And further, such directions may be either discretionary or imperative. The executor may be given such powers that he is in effect vested with a trust. Where land is conveyed or devised to trustees and they have active duties to perform, they necessarily take the legal title; if executors have active duties to perform regarding the real estate which can not be performed unless the legal estate is vested in them, they are in fact trustees and are vested with the legal title for the purposes of the trust. 48 But although the executor is granted

tor against him. Quære, whether the estate of the tenant by the curtesy is subject to the debts of the wife and therefore subject to possession by the representative of the estate.-Sullivan v. King, 67 Ore. 428, 136 Pac. 335.

48 Young v. Bradley, 101 U. S. 787, 25 L. Ed. 1044; West v. Fitz, 109 III. 425; Meek v. Briggs, 87 Iowa 610, 43 Am. St. Rep. 410, 54

N. W. 456; Morton v. Barrett, 22 Me. 257, 39 Am. Dec. 575; Gerard v. Buckley, 137 Mass. 475; Weller v. Noffsinger, 57 Neb. 455, 77 N. W. 1075; Arlington State Bank v. Paulsen, 57 Neb. 717, 78 N. W. 303; Matter of Tienken, 131 N. Y. 391, 30 N. E. 109; Matter of Tomkins, 154 N. Y. 634, 49 N. E. 135.

Under a will which gives the executor a power of sale at his