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tor, all the rents and profits thereof. The administrator was not authorized either to take possession of the real estate of the intestate or to collect the rents and profits. It appears from the findings that the administrator took possession of the real estate, supposing—and the leirs supposing -it was his duty to do so, and as such administrator received the rents and profits therefrom. It does not appear from the findings, however, that the administrator charged himself with the rents in his representative capacity, or that he brought the rents into his account with the estate, or that he made them the subject of a decree of the probate court, or that the estate had the use thereof, or received any benefit therefrom.

The administrator was not required by law to take possession of, or account for, - the rents and profits as a part of the estate.

He is not liable to account, as administrator, to the estate therefor. . . If a representative takes possession of the real estate of the deceased, he is accountable to the heirs as their agent, and not

... in his official capacity.”

It appeared in Kothman v. Markson (1886) 34 Kan. 542, 9 Pac. 218, that the administrator of an intestate's estate collected the rents of the deceased's real estate and charged them as assets of the estate. This procedure extended over a considerable period of time, and no objection appeared to have been offered by the heirs. It was held that the general rule was that an administrator was not entitled to the rents of the intestate's real property, but that in the present case the parties were estopped to deny that the rents thus collected and applied were assets of the estate.

14. Kentucky. For all rents that accrued after the death of the lessor, the cause of action for a recovery is exclusively in the heirs. O'Bannon V. Roberts (1834) 2 Dana, 54.

The rents which accrue after the death of the lessor belong to the heirs, and are not assets of the intestate's estate in the hands of the adminis

trator. Marble v. Marble (1882) 4 Ky. L. Rep. 360; Eastin v. Hatchitt (1894) 15 Ky. L. Rep. 780; Smith v. Bland (1846) 7 B. Mon. 21; Slaughter v. Froman (1825) 25 B. Mon, 95.

"Such portion of the rent as accrued after the death of the landlord was not assets in the hands of the administrator. The statute (Rev. Stat. § 30, art. 2, chap. 37) did not change the common law." Rank Hill (1871) 8 Bush, 66.

It was said in Oldham v. Collins (1830) 4 J. J. Marsh. 51, that the administrator, who received rents for which he never accounted, was personally liable to the heirs for the amounts so received. He acted as trustee, and not as administrator.

The court in Williamson v. Richardson (1828) 6 T. B. Mon. 603, said: “Rent issuing out of the land belongs to the realty; the law directs the reservation in the general, according to the nature of the estate demised. It belongs prima facie to the remainderman, reversioner, heir, devisee, or assignee of the realty; if it belongs to the personalty, the administrator, who represents the personalty only, and not the real estate, and claims the rent, must show that it belongs to the personalty or chattel interest of the intestate.”

It is said in Stokeley v. Flanders (1910) – Ky. - , 128 S. W. 608: “The rents of land belong to the heir, and are not assets in the hands of the administrator for the payment of debts. A mortgage which does not by its terms give a lien upon the rents and profits creates a lien only on the land, and not on the rents."

Where an administrator in South Carolina collected rents after the death of the intestate, it was held that the heirs could maintain a suit in chancery in Kentucky against such administrator, if found in that state, and he would be held to be a trustee and amenable to the heirs in a court of equity. Atchison v. Lindsey (1845) 6 B. Mon. 86, 43 Am. Dec. 153.

In Coons v. Nall (1823) 4 Litt. 263, it appeared that a widow died before her dower in the rents of her husband's real estate were recovered.

Her heirs sued for such rents as were to the debts the rents accruing after due during her lifetime. It was held the intestate's death, and that all of that the heirs had no right of action, the estate, whether descended to the the court saying that, granting that heirs, or technically assets in the adthe widow had a right to the accruing ministrator's hands, could be so aprents after her husband's death, such plied. rents were accrued and became per- It was held in Costigan v. Truesdell sonal property belonging to her (1904) 119 Ky. 70, 115 Am. St. Rep. personal representative, and not to 241, 83 S. W. 98, that on sale of the her heirs.

intestate's real property a purchaser In Wilson v. Unselt (1876) 12 Bush, taking possession before the period 215, it was said that the statutory of redemption expired was not enstipulation in the bond to account for titled to the rents during the period, rents was made because, under a stat- since the rents were not assets of the ute (Ky. Rev. Stat. 30, p. 507), the estate, but belonged to the husband personal representative was entitled to and the heirs at law during the periall the rent where his intestate held an od. estate for the life of another, and to

15. Maine. an apportionment of the rent between him and the heir or those entitled, "It is a familiar and established where the owner of a fee or freehold principle of law that when a man had rented out the land and died be.

dies seised of real estate, and intesfore the rent became due. Under

tate, it descends to his heirs, subject another act (Ky. Rev. Stat. chap. 37, to the payment of his debts, if there art. 2, $ 9), providing for a bond by the

be a deficiency of personal assets. administrator to the effect that he will

His administrator has no right to enwell and truly make a proper distri

ter into the lands or take the proflts. bution of any surplus money, effects,

He has no interest in them, but a and rents which shall come to his

naked authority to sell them on lihands by color of his office, it was

cense, to pay the debts. An adminisheld that this referred to rent accru

trator has no interest in the real esing in the lifetime of the decedent, tate, unless mortgaged to the intescollected by the personal representa

tate; he has no right of entry into tive, and his sureties would not be lia- it, and cannot bring any real action ble for rents collected by him on lands

to recover seisin and possession." leased by him as administrator, Fuller v. Young (1833) 10 Me. 365. which descended to the heirs. It was

The court in Heald v. Heald (1828) said that where the intestate holds 5 Me. 387, said: “It seems well setan obligation for rent, and dies be- tled that though an administrator has fore it falls due, that if it is collected no legal right to enter into possession by the administrator it would be re- of the real estate of which his intesgarded as assets for which the surety

tate died seised, because it has dewould be liable.

scended to his heirs at law, still, when It was said in Heeter v. Jewell he does so enter and improve it, he (1869) 6 Bush, 510, that "before the is accountable to those heirs for the passage of the Revised Statutes rents rents and profits. If the estate is accruing after the death of an in- solvent, they are entitled to the estestate and collected by his adminis

tate itself and its income; if insolvent, trator were not legal assets,

the creditors are only entitled to the though he might be made personally estate of which the intestate died liable for the same as trustee.” The seised, and not to the rents and profits statute referred to is apparently that after his death; for these belong to cited in the preceding paragraph. his heirs."

In Thompson v. Bailey (1880) 1 Ky. The question presented for deterL. Rep. 321, it was held that, pending mination in Stinson v. Stinson (1854) an action for a sale to pay debts, the 38 Me. 593, was whether or not the administrator could collect and apply rents falling due and payable after

the death of a lessor belonged to the heir, the administratrix, or partly to both. It appeared that the intestate left land leased for a term of years at an annual rent, payable on the 1st day of August of each year. The lessor died in March following the date of the lease. The holding of the court was to the effect that the rents belonged to the heir, and that, if the administratrix had collected the rents, she would be accountable for them as held in trust for the heir.

The holding in Kimball v. Sumner (1873) 62 Me. 305, was to the effect that the rents of the real estate of a deceased insolvent debtor belonged to the heirs at law until the land was sold for the payment of debts. i Under a statute (Rev. Stat. chap. 64, $ 54) providing that the administrator shall be chargeable with all interests, profits, and income that come to his hands from any estate of the deceased, and another section of the same Revision (chap. 66, § 20), providing that an administrator may recover damages even against an heir or devisee for waste or trepass, an administrator is liable to the heirs for rents collected by him, as he has no right of possession, rents and profits not going to the administrator as such, but for the heirs to whom they belong. It was said that, by consent of the heirs, they might be used as assets, in which case the administrator should account for them. Kimball v. Sumner, supra.

16. Maryland. In Getzandaffer v. Caylor (1873) 38 Md. 280, it was said that rents accruing after the death of an owner of land did not pass to the administrator or executor as a part of the personal property, but went to the heirs or devisees.

heirs, subject to the payment of debts, if there be a deficiency of personal assets. The administrator frequently enters on the lands, and accounts for the rents and profits in the probate court; and this practice may not be inconvenient to the heirs. For the profits become a part of the fund, if wanted for the payment of the debts; and, if not wanted, they form a part of the distributive shares of the personal estate. But, in law, the administrator has no right to enter into the lands, or to take the profits. He has no interest in them, but a naked authority to sell them on license to pay the debts, when the personal estate is insufficient." Drinkwatery. Drinkwater (1808) 4 Mass. 354.

It was said in Stearns v. Stearns (1822) 1 Pick. 157, that "although the administrators had no right to occupy the real estate against the will of the heirs, and could never be required to occupy it, yet they might do so with the consent of the heirs and account for the rent as might be agreed by the parties.”

In Gibson v. Farley (1820) 16 Mass. 280, it appeared that on the death of a lessor intestate his real estate was sold by the administrator to satisfy the debts of the estate. After the death of the lessor, and before the sale, the administrator collected the rents. The court said that “the heirs only could legally demand the rents." It was held further that there was no difference between rents from lands mortgaged and rents from lands unencumbered, the administrator being bound to account to the heirs for the rents.

In Palmer v. Palmer (1859) 13 Gray, 326, it was said that strictly an administrator has nothing to do with the real estate of his intestate except to execute the power to sell it for the payment of debts when necessary, and when he has obtained the authority, but sometimes by an arrangement with the heirs he takes the profits of the whole for the benefit of the estate, and, if so, he must account for what he may receive as assets. But it was held that if one of the heirs has been in possession, the fact that

17. Massachusetts. The rents and profits which accrue after the death of the landlord intestate belong to the heirs. Clark v. Seagraves (1904) 186 Mass. 430, 71 N. E. 813; Codman v. American Piano Co. (1918) 229 Mass. 285, 118 N. E. 344.

"At law, the lands descend to the

he is also one of the administrators will not impose upon him the obligation to account for profits which any of the heirs may rightfully take and retain so long as their title is not devested by the sale.

Where it appeared that the rent on a lease given by the deceased fell due after his death, and it was not the intent of the parties to terminate it by the death of the lessor, the heirs were held to be entitled to sue for and recover the rent which accrued after the decease. Jaques v. Gould (1849) 4 Cush. 384; Boynton v. Peterborough & S. R. Co. (1849) 4 Cush. 467.

Brooks v. Jackson (1878) 125 Mass. 307, involved statutes (Gen. Stat. chap. 98, § 8, Rev. Stat. chap. 67, § 6, Stat. 1789, chap. 11, § 2) providing that if the executor or administrator uses or occupies any part of the real estate, he shall account for the income thereof as ordered by the probate court. The court said: “This provision has always been construed as applying as well to rents received by the executor or administrator as to the use of real estate occupied by him in person; and we can have no doubt that it extends to his occupation or receipt of rents from the time of the death to which his appointment relates. It requires him to account for rents and profits received enjoyed by him, to none but those to whom they belong; and if he is himself the heir or devisee he is not obliged to account for them at all. When he is not himself heir or devisee, he is required by the statute to account for them in the probate court, but to the heirs or devisees only, unless they, either expressly, or by implication from assenting to his accounts in which he charged himself with rents as part of the general assets, have agreed that they shall be applied to the payment of debts, legacies, and expenses of administration, in which case he is chargeable accordingly.”

The rule stated in Towle v. Swasey (1870) 106 Mass. 100, was as follows: "The rents of the real estate received by the administrator are not assets

to be administered by him. In the absence of any agreement that they shall be so treated, they belong, with interest received upon them while in his hands, to the son and only heir."

Where the rents of real estate have been received by the administrator with the consent of the heirs, he is in lawful possession and has good title against all persons except the heirs. Wilson v. Shearer (1845) 9 Met. 504.

18. Michigan. Most of the cases in Michigan arose under a statute (Comp. Laws, 2904) providing that the administrator "shall have the right to the possession” of lands of the intestate, and “may receive the rent." In Streeter v. Paton (1859) 7 Mich. 341, it was said, after stating that the common-law rule was to permit the rents to be applied in payment of debts, that the right to possession and rents was in the heir unless the administrator claimed it under the statute.

The language of the court in Howard v. Patrick (1878) 38 Mich. 795, was as follows: “The real estate of a deceased intestate descends to the heirs, who alone are entitled to the possession, and to the rents and profits, subject to the payment of the debts of the deceased, in the absence of any statute otherwise disposing of it. The statute (Comp. Laws 1857, § 2904) in force at the time this claim for rent accrued did not deprive the heirs of their inheritance, or their right to the possession of the real estate. They could enter into and remain in possession and in the enjoyment of the rents and profits thereof, until the executor or administrator took possession or claimed the right thereto under the statute.

Until the administrator took or claimed possession under the statute the possession of the heirs was a rightful one, and they were not accountable to any person for the rents and profits thereof while so in possession.”.

Kline v. Moulton (1863) 11 Mich. 370, held that the statute' (Comp. Laws, $ 2904) was intended to enable the administrator to receive the rents while the estate was being


settled, and to account for them as administrator, only during the period, and solely for the purposes, of administration.

In another Michigan case it was said that the statute merely gave the administrator control of the rents while the estate was in process of settlement, the measure being only a safeguard for the benefit of creditors. Campau v. Campau (1869) 19 Mich. 116.

The statute was repealed by the Act of March 29, 1871 (Sess. Laws 1871, p. 80), and it was held that it was entirely competent for the legislature to take away from the administrators the power to hold the possession and rents by the repeal of the statute. Campau v. Campau (1872) 25 Mich. 127.

A re-enactment of this act in 1881 (Sess. Laws 1881, p. 278) authorized the executors and administrators to take possession of the realty of deceased persons. The powers given by the statute included a power to receive the rents and profits until the estate was settled or the land turned over to the heirs or devisees. In Van Fleet v. Van Fleet (1883) 49 Mich. 610, 14 N. W. 566, the court said: “Before this statute was passed the personal representative had no control over the realty except as power might be granted in certain cases to dispose of it. The rents belonged absolutely and completely to the heirs or devisees. They could rent, sell, or divide the property at their pleasure, subject only to the contingency of the granting of a license in the special cases provided by law, and then the rents and profits belonged to them up to the time of such disposal."

The view taken in Wilmarth v. Reed (1890) 83 Mich. 44, 46 N. W. 1031, was that the administrator was under a duty to take advantage of the statute giving him the right to possess the real property for the purpose of collecting the rents, with view either to pass them over to the executor if one were appointed, or to a just and fair distribution of the estate in case none were appointed.

19. Minnesota. Under the Minnesota statute (Gen. Stat. chap. 52, § 6) giving the administrator the right to the possession and the rents of an intestate's real estate during the period of administration, the administrator has these rights as against the heirs or any other persons, until the estate is settled or released to the heirs by order of the probate court. His right is not dependent on the solvency or insolvency of the personal estate. Miller v. Hoberg (1875) 22 Minn. 249.

In Nordlund v. Dahlgren (1915) 130 Minn. 462, 153 N. W. 876, Ann. Cas. 1917B, 941, it was held that the husband was entitled to the rents of his wife's homestead where she died intestate and left issue surviving. The court said: “The homestead descends 'free from all debts or claims upon the estate.' Neither the land nor the rents or profits derived from the land can be used for the purpose of satisfying claims against the estate. For administration purposes, it is not a part of the estate. It descends to the surviving spouse for the term of his natural life, and he, not the administrator, is entitled to the possession of it, and to the rents and profits derived from it."

20. Mississippi. On the question of whether the rent accruing after the death of an intestate, and arising without any special contract, would pass to the administrator or to the heirs at law, the court in Bullock v. Sneed (1850) 13 Smedes & M. 293, said that unless the estate is insolvent the right to the rents accruing after the death of the landlord passes as an incident to the land, which descends at once to the heirs at law.

It was said in Bloodworth v. Stevens (1875) 51 Miss. 475, that the statutes in force in Mississippi at the time were merely declaratory of the common-law rule that rent due before the death of the landlord belongs to the personal representative, but rent which accrues afterwards follows the reversion as an incident and belongs to the heirs.


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