had passed to the heirs, and were not needed for any purpose of administration, and that the administrator then had no power to control the rents, and no right, without the consent of the heirs, to occupy the lands or to collect the rents. It was said further that if he received the rents at the heirs' request, he acted as their agent, and payment to him by the tenant discharged the debt; but in so doing he would not be acting in his representative capacity, but merely as agent or trustee of the fund.

In Hill v. Mitchell (1843) 5 Ark. 608, it was held that, by statute, the administrator of a landlord has a right to hold the land and to collect the rents as conditional assets. He may devest the heirs by order of court, obtained by showing that the rents are needed for the payment of debts. But this does not destroy the rule of descent. In case they are not needed, they belong to the heirs and the widow.

Neither the statute nor the common law entitles an administrator to the rents and profits which have accrued on lands of the intestate in a jurisdiction foreign to his appointment. Fairchild v. Hagel (1890) 54 Ark. 61, 14 S. W. 1102.

In Reynolds v. New Orleans Canal & Bkg. Co. (1875) 30 Ark. 520, wherein it appeared that a mortgage was forfeited, and the mortgagee allowed the administrator of the mortgagor to have the rents for the benefit of the heirs, in order to obtain possession, it was said: "If actually applied towards the extinguishment of the mortgage, and the estate so received the benefit of it, the creditors of Griffin have no reason to complain that Johnson was allowed by Whitaker to retain it for the heirs, for they suffered no injury; but, if not so applied, Johnson should be, and was, rightly charged with it in his account."

Under the Arkansas Constitution of 1874 (art. 9, § 6), providing that a widow without children, having no separate homestead in her own right, should be entitled to the rents and profits of the homestead of her husband during her natural life, she was

entitled to rents and profits of all the lands constituting a part of the homestead, from the death of her husband. Stull v. Graham (1895) 60 Ark. 461, 31 S. W. 46.

4. California.

Under the California statute the administrator may hold all the real property of his intestate conditionally for the payment of debts, in case the personal estate prove insufficient. The title to the real estate and the right to the rents vest in the heirs, subject to the right of the administrator. He is entitled to receive the rents and profits of the real estate until final settlement. He may apply rents to the payment of taxes and for the necessary preservation of the real estate, but must account to the heirs for the proceeds. Re Porter (1900) 129 Cal. 86, 79 Am. St. Rep. 78, 61 Pac. 659; Beckett v. Selover (1857) 7 Cal. 215, 68 Am. Dec. 237.

It was held in Shepperd v. Tyler (1891) 92 Cal. 552, 28 Pac. 601, that the administratrix was entitled to collect the rents of the intestate's lands during the period that the statute authorized her to retain possession of the land.

5. Colorado.

In Colorado the common-law rule obtains that lands of an intestate descend to the heirs, and not to the administrator. Therefore, the purchaser of real property, which descended to infant heirs, but was unlawfully sold by the administrator of the ancestor, has been held liable to account to the heirs for the rents he received during the period of his possession. Filmore v. Reithman (1881) 6 Colo. 120.

6. Connecticut.

In Goodrich v. Thompson (1810) 4 Day, 215, where it was shown that an administrator collected rents of his intestate's real property, and failed to account for them as assets of the estate, the court held that the rents which accrued after the death of the landlord were not assets to be included in the account of the goods and chattels of the deceased, saying

that, since the estate was solvent, all the real property of every description descended to the heirs as soon as descent was cast.

In Remington v. American Bible Soc. (1875) 44 Conn. 512, a statute providing that the income of real estate "shall vest in the executors and administrators in the same manner as personal property," was held not to change the common-law rule, but merely to give the personal representative the power to collect rents and hold them until the ownership was settled in administration proceedings.

7. Delaware.

The pertinent statute and its effect were stated in Davis v. Rawlins (1841) 3 Harr. 346, as follows: "By the 13th section of the act (Dig. 226) concerning the probate of wills and the administration of the personal estate of deceased persons, rents of the real estate of the deceased which shall come to the administrator's hands are made assets for the payment of demands against the deceased, and the administrator is made chargeable therewith accordingly.

The act did not mean to make him liable only to heirs, but to creditors also; for it is further provided that, upon a demand of the heir or devisee of such rents, it shall be a sufficient defense that the administrator has applied them to demands against the deceased, or that there are such demands to which the same are applicable."

8. Florida.

The Florida Statute of 1833 (Thomp. Dig. 202, 203) provided that the administrator was authorized to take possession of his intestate's real property and to collect the rents. It has been held that under the statute the rents and profits of a deceased landlord's real estate constitute assets in the hands of the administrator for the payment of debts, in case the personal estate prove insufficient. Gilchrist v. Filyau (1848) 2 Fla. 94; Union Bank v. Powell (1850) 3 Fla. 175, 199, 52 Am. Dec. 367; Merritt v. Daffin (1888) 24 Fla.

320, 4 So. 806; Deans v. Wilcoxon (1889) 25 Fla. 980, 7 So. 163.

In Sanchez v. Hart (1880) 17 Fla. 507, it was said that in Florida the heir was not entitled, as against a creditor, to the rents and profits of his ancestor's real estate until final settlement of the estate, and that in the meantime they were assets in the hands of the personal representative of the deceased, and could be applied to the payment of debts, if necessary, after the personal property was exhausted.

9. Georgia.

It appeared in Hoyt v. Ware (1923) Ga. -, 118 S. E. 734, that a landlord died intestate and without sufficient personal property to satisfy his debts. The administrator took possession of the real estate and collected the rents. It was held that the title to the realty, on the death of the ancestor, passed immediately to the heirs, but subject to the provisions of the Code. With the land went the right to the rents. If the administrator undertook to collect them, he did not do so as an administrator, but as trustee for the heirs at law. Until an order had been obtained authorizing the personal representative to possess the realty and its incidents, the land and its accruing rents belonged to the heirs. Compare Autrey v. Autrey (1894) 94 Ga. 579, 20 S. E. 431.

In Craddock v. Kelly (1908) 129 Ga. 818, 60 S. E. 193, it was held that the administrator was entitled to the rents on land, wrongfully withheld by the heirs, where the personal property of the estate was insufficient to discharge the debts of the decedent. The heirs were only entitled to a distribution of the proceeds.

10. Illinois.

In Illinois rent is a chattel real, and when it accrues after the death of the lessor it goes to the heirs, and not to the administrator. Dixon v. Niccolls (1866) 39 III. 372, 89 Am. Dec. 312; Green v. Massie (1851) 13 Ill. 363; Crosby v. Loop (1852) 13 Ill. 625; Sherman v. Dutch (1855) 16 Ill. 283; Foltz v. Prouse (1856) 17 Ill.

487; Haynes v. McDonald (1910) 158 Ill. App. 294.

In Claussen v. Claussen (1917) 279 Ill. 99, 116 N. E. 693, the court said that the heirs were entitled to all the rents of the real property from the date of their father's death until demand was made for the assignment of dower, and that the widow was entitled to one third of the rents after demand of dower.

It was held in Dorman v. Lane (1844) 6 Ill. 143, that an administrator who received accruing rents on the lands of the intestate did so as a trustee, and not as an administrator, and was answerable to the heirs for the rents received.

In McDermott v. Hoops (1916) 198 Ill. App. 444, it was held that the heirs were entitled to the rents after the death of the landlord, and that thereafter they were the proper parties to bring action for rents.

The language of the court in Smith v. McConnell (1855) 17 Ill. 135, 63 Am. Dec. 340, was as follows: "It has been held repeatedly by this court that the land of one dying intestate descends to the heir; and although it is subject to the payment of debts, and may afterwards be devested by decree and sale of the administrator, the heir is nevertheless owner, and entitled to the rents and profits in the meantime. The administrator, therefore, takes neither an estate, title, nor interest in the realty."

It has been held that on the death of the lessor intestate the accruing rent belongs to the heirs on whom the estate is cast, and that the rent must be apportioned among them, so that it is the duty of the tenant to pay each heir the proportion of the rent to which he is entitled. Crosby v. Loop (1852) 13 Ill. 625.

In Goeppner v. Leitzelmann (1881) 98 Ill. 409, it was held that the heirs might question the right of the executrix to receive rents of the estate, but if they chose to treat such funds as in her hands for the payment of debts, she should be charged therewith as assets of the personal estate.

In Stark v. Brown (1882) 101 Ill. 395, it was held that the intestate's

land descended immediately to his heirs at law, and they became entitled to the rents and profits thereafter maturing, and that only in the contingency of insufficient assets of the personal estate to pay debts was the administrator empowered to secure a decree to possess and to sell the real estate.

Where the intestate's real property is fraudulently purchased by his administrator under another name, and the sale is set aside, the administrator should be compelled to account to the heirs for the rents which accrued and were collected after the death of the landlord. Kruse v. Steffens (1868) 47 Ill. 112; Lagger v. Mutual Union. Loan & Bldg. Asso. (1893) 146 Ill. 283, 33 N. E. 946.

11. Indiana.

The rule stated in King v. Anderson (1863) 20 Ind. 385, was to the effect that rents which accrued after the death of the lessor are collectable by the heirs.

In Trimble v. Pollock (1881) 77 Ind. 576, it was held that the appellants, who were the only heirs at law of the intestate, were therefore lawfully entitled to the rents after the death of the owner, and that the administrator who collected the rents did not act for the estate, but as agent of the heirs, to whom he became personally liable and bound to account therefor. It was no defense, the court said, that the rents had been applied to the payment of debts.

An administrator has no power over real estate except that given by statute. Where heirs are present to take charge of the real estate, money received by an administrator for rents or the use of the real estate, when not acting under special order of court or by agreement with the heirs, does not become a part of the assets of the estate. Even in case of judicial sale, the heirs may have the rents until the sale. Kidwell v. Kidwell (1882) 84 Ind. 224.

"The administrator is not entitled to the rents and profits of land which descended to the heirs of his decedent, without filing a petition and obtaining an order of the court. in which

1

case he would be required to file additional bond." State ex rel. Homer v. Barrett (1889) 121 Ind. 92, 22 N. E. 969.

In Murray v. Cazier (1899) 23 Ind. App. 600, 53 N. E. 476, 55 N. E. 880, it was held that the provision of a lease directing that the rents, after the lessor's death, should be paid to his widow, was simply an attempted disposition to take effect after death. A disposition of rents that are to fall due after the landlord's death must necessarily be testamentary in its character, and must be executed with the required statutory formalities. Where the landlord was seised in fee, the reversion passed to the heirs or devisees, and hence the rents would go to the heirs or devisees.

The decision in McClead v. Davis (1882) 83 Ind. 263, was that an administrator who collects the rents accruing after the death of the lessor will be personally answerable to the heirs. therefor, and that the fact that he paid debts with the funds is no defense.

In Dorsett v. Gray (1884) 98 Ind. 273, it was said that rents accrued prior to the death of the landlord were collectable by the personal representative, and those accruing afterwards by the heirs.

12. Iowa.

At common law the administrator had no right to receive or to recover the rents and profits which accrued after the death of the intestate. Beezley v. Burgett (1863) 15 Iowa, 192. But under an early statute (Rev. Code 1860, § 3954) the personal representative was authorized, in a proper proceeding, to take over the decedent's realty in case the personal assets proved insufficient to satisfy debts.

Under that act, where the assets are insufficient to pay the debts, the administrator is authorized to collect the rents which accrued on the intestate's lands after his death. Crawford v. Ginn (1872) 35 Iowa, 550; Toerring v. Lamp (1889) 77 Iowa, 488, 42 N. W. 378.

The record in Laverty v. Woodward (1864) 16 Iowa, 1, showed that the

plaintiff, widow of the intestate and assignee of some of the heirs, sued to recover certain rents and profits of the intestate's real estate collected by the defendant in his administrative capacity. It was held that the administrator had no right to the rents in his official capacity, but that the plaintiff had no right to sue for her dower interest as widow until it had been assigned, the court saying that the rents descended to the heirs at once on the death of the ancestor.

The act does not apply where there are heirs competent to take. An administrator cannot recover for rents of his intestate's lands without showing that there are no such heirs, since such a recovery would not bar an action by a proper heir for his lawful interest in the realty. Shawhan v. Long (1868) 26 Iowa, 488, 96 Am. Dec. 164; Gray v. Myers (1876) 45 Iowa, 158; Toerring v. Lamp, supra.

It was held in Durlam v. Steele (1893) 88 Iowa, 498, 55 N. W. 509, that the administrator was not a proper party to sue for rent which accrued after the landlord's death.

Again, in Kinsell v. Billings (1872) 35 Iowa, 154, the court said that under the common law an administrator had no right to receive the rents of real property accruing after the death of the intestate, and that such was still the law in Iowa, except where statute otherwise provided.

In Crane v. Guthrie (1877) 47 Iowa, 542, it was held that the administrator was not entitled to the rents which accrued after the death of the landlord. Having collected them, it seems he would be personally answerable to the heirs.

An administrator who is also guardian of the intestate's minor heirs has no right to include in his administrator's account moneys received by him as rent of the decedent's real estate accruing after his death; for such moneys he should account as trustee of the heirs, or as guardian of the infants. Foteaux v. Lepage (1858) 6 Iowa, 123.

"The heirs are entitled to the unaccrued rents, for the reason that they are so far dependent on the real

estate from which they issue as to be treated as a part of it." Toerring v. Lamp, supra.

But in Dexter v. Hayes (1893) 88 Iowa, 493, 55 N. W. 491, the case of Toerring v. Lamp was distinguished, the court saying: "Toerring v. Lamp, supra, is distinguishable from this case in several important particulars. This is an action by the administrator to recover rent from the widow and heirs, whose liability to anyone is at least questionable. That case was against the tenant under a lease for twenty years, executed by the deceased, and there was no question of the defendant's liability to someone. In that case the administrator had an order of court, made with the consent of the widow and heirs, to collect that rent. In this there is no such authority.

Rents and profits,

like the real estate itself, may be subjected to the payment of debts, when the personal assets are insufficient, in the manner provided, but not otherwise."

In Pennock v. Pennock (1904) 122 Iowa, 622, 98 N. W. 480, it appeared that the widow of the intestate sued the administrator for one third of the rents which accrued after the death of the landlord. The administrator had taken possession of the land, with her consent, and had collected the rents. The court said: "Rents and profits, like the real estate itself, may be subjected to the payment of debts when the personal are insufficient, in the manner provided; but not otherwise.' . . . The administrator may, by direction of the court, take charge of any real estate belonging to the deceased, and apply the profits to the payment of claims against the estate of the deceased, whenever the personal assets of the estate are insufficient. . . . Without such order or direction of the court, the administrator has nothing to do with the real estate, save where there is no heir present and competent to take possession of the real estate, and in such case his possession is that of a trustee only. . But this is virtually an action brought by the widow herself, against the

administrator as such, to recover one third of the rents and profits received by him from the land of her deceased husband. . . . She is not entitled to recover them in such a proceeding. . . . As administrator, he is not responsible to the heirs for rents collected, and in no event is he liable to a widow for rents until her distributive share is set aside." The question of whether or not she could recover in an action against the administrator in his personal capacity was not decided, but it was suggested that she might be estopped by her assent to his collecting the rents.

It appeared in Metcalf v. Baldwin (1909) 143 Iowa, 310, 120 N..W. 104, that the husband was appointed administrator of the estate of his wife and also of an estate of which she was executrix, and took possession of all the real properties. The court said: "Metcalf [the husband] was not entitled to any part of the rents of the real estate arising after the death of either Livingston or Mrs. Metcalf. These were matters arising after the death of the parties owning the land, and went directly either to the heirs or devisees, or passed to the administrator or executor for the payment of debts."

The widow and heirs of an intestate are entitled to the rents accruing during the period of redemption from a foreclosure sale, in the absence of a court order or consent of the beneficiaries. Tetzloff v. May (1915) 172 Iowa, 617, 154 N. W. 905.

13. Kansas.

In Head v. Sutton (1884) 31 Kan. 616, 3 Pac. 280, the evidence showed that, after the death of the lessor intestate, the administrator took possession of all the property, both real and personal, under the mistaken belief of the heirs and himself that such was his proper right and duty. The court held that the accruing rents belonged to the heirs, and were not assets of the estate, saying: "The title to the real estate, which the heirs took by descent, entitied them to the possession of it, and they had the right to receive, as against the administra