It was said in Wood v. Bott (1878) 56 Miss. 128, that until the land is made assets by order of the probate court, to pay the debts of the estate, the legal title is in the heirs, with all its incidents.

In Crowder v. Shackelford (1858) 35 Miss. 321, an administrator was held to be chargeable with rents where he had voluntarily returned the rents as charges in his annual account, and the commissioners, following the interlocutory decree, merely transferred to the account stated by them the items in the administrator's own accounts, and he made no objection to the charge. The court said that after receiving rents for over ten years, and professing to account for them in his trustee capacity, it would be monstrous now, after the claim against him in every capacity is barred by limitation, to permit him. to raise the objection now insisted on. The court further said that the rents belonged to the distributees, and they had the right to advance them, or any other money belonging to them, for the payment of debts, so as to protect the specific property.

But under a statute (Miss. Rev. Co de 1871, § 1639) the personal representative is entitled to the rent proportionately, on the death of the life tenant, who had made a demise and died before the life tenancy had expired. This is held to be an exception to the common-law rule. Bloodworth v. Stevens (1875) 51 Miss. 475.

21. Missouri.

No rule of the common law is better settled than that the unaccrued payment of rent on land after the death of the owner or lessor goes to the heir, and not to the administrator. As the realty descends directly to the heir, the accruing rents, as the fruit of the inheritance, must follow on the principal estate. Shouse v. Krusor (1887) 24 Mo. App. 279. See also Coberly v. Coberly (1905) 189 Mo. 1, 87 S. W. 957.

In McPike v. McPike (1892) 111 Mo. 216, 20 S. W. 12, the court said: "At the common law, and in those states generally where the common 31 A.L.R.-2.

law has been adopted, and only modified to the extent of permitting a sale of the lands to pay debts, it has generally been held that, where an administrator came into the possession of rents from the realty or the proceeds of sale, he was chargeable therefor individually as a trustee or trespasser, but not in his character as administrator. In this state, however, our statutes require the administrator to inventory the real estate, and under the orders of the probate court he is authorized to lease the real estate, collect the rents, prosecute actions for the recovery of possession, discharge mortgages and other liens, and deliver the property to those entitled thereto, when not needed for the payment of debts. Chap. 1, art. 4, § 69; art. 5, §§ 93, 94; art. 7, §§ 129, 130; art. 8, §§ 145 et seq. But in the present case the evidence of the administrator is that he did not receive these rents as administrator. It certainly seems reasonable that he received it as their attorney in fact, or guardian ad litem, and not as administrator. . . . The circuit court erred in charging him with said rents that accrued after the death of the lessor."

In Bealey v. Blake (1897) 70 Mo. App. 229, it appeared that on the death of the landlord the administrator of the estate claimed rents which the plaintiff was collecting for the heirs. The court said: "Rent is a certain profit issuing out of land and tenements, and as such it abides, unless otherwise provided, with the title. It is incident to the reversion, and follows a transfer of ownership, whether such transfer be by voluntary or involuntary conveyance, by devise, descent, or otherwise. The rent due and payable before the death of the lessor is personal property,-a chattel, -and passes to the administrator; but 'no rule of the common law is better settled than that the unaccrued payment of rents on land, after the death of the owner or lessor, goes to the heir, and not to the administrator. As the realty descends directly to the heir, the accruing rents, as the fruit of the inheritance, must follow the

thereof in his administration account."

In Plumer v. Plumer (1855) 30 N. H. 558, it was held that under the Statute of 1829, referred to in the preceding paragraph, if an estate is actually insolvent, no possession of the real estate can be taken by the heirs, because the whole estate, real and personal, is required to pay the debts of the estate. In such a case, it was said, the rents would go to the administratrix, but if the rents were not necessary for the payment of debts the heirs would be entitled to the rents and profits.

It appeared in Lucy v. Lucy (1874) 55 N. H. 9, that the lessor of real estate died before the expiration of the term. Although the estate was solvent, the administrator took possession and collected the rents. It was held that the real estate vested immediately in the heirs, subject to be devested by proper proceedings for the payment of the intestate's debts; that the administrator was accountable to the heirs, and not to the probate court, for the rents and profits; but that had the estate been insolvent, and settled in the insolvent course, the administrator would have been bound to take possession of the land and receive the rents.

So it was held in Perkins v. Perkins (1878) 58 N. H. 405, that, the estate being solvent, the real property of the intestate vested in the heirs at

law, and the administratrix improperly charged herself with the rents accruing after the death of the lessor.

It appeared in Ayers v. Laighton (1906) 73 N. H. 487, 63 Atl. 43, that on the death of the landlord the administrator treated the estate as solvent, but collected the rents of the real estate. During the course of the administration the estate was decreed to be administered in the insolvent course. The administrator continued to collect the rents, and on his final accounting the probate court charged him with the rents received both before and after the decree. It was held that up to the time of the decree of insolvency the administrator was not chargeable with the rents,

but merely collected them in his individual capacity as agent for the heirs. But after the decree he was bound by statute to take possession of the real estate and collect the rents. After the decree he was chargeable with the rents as assets of the estate.

23. New Jersey.

In Allen v. Van Houton (1842) 19 N. J. L. 49, it appeared that the intestate leased his land and reserved rent payable annually. There were two heirs at law, and about a year after the death of the lessor one assigned his interest to the other. In an action by the assignee as heir and as assignee, it was held that he could not recover rent accruing before the assignment. And see Allen v. Van Houton (1842) 19 N. J. L. 47.

24. New York..

Rents accruing subsequently to the intestate's death belong to the heirs, and the administrator has no right to them. Kohler v. Knapp (1850) 1 Bradf. 241. See to the same effect: Miller v. Crawford (1891) 26 Abb. N. C. 376, 14 N. Y. Supp. 358; Re Strickland (1894) 10 Misc. 486, 32 N. Y. Supp. 171; Walcoff v. Bittker (1910) 67 Misc. 414, 122 N. Y. Supp. 680, affirmed in (1913) 156 App. Div. 939, 141 N. Y. Supp. 1150; Lambden v. Thompson (1916) 173 App. Div. 267, 159 N. Y. Supp. 242.

In Thompson v. Brown (1820) 4 Johns. Ch. 619, the widow was not required to account for the accruing rents she collected and expended in the necessary maintenance of her children. The rents were said not to be assets belonging to the administrators for the payment of the debts of the estate, but to belong to the infant heirs.

In Cole V. Patterson (1841) 25 Wend. 456, it was held that on the death of the lessor intestate, the land descended to the heirs. The severance of the reversion,-a half to the sister and a quarter to each of the two nieces-carried with it the right to proportionate shares of the rents in

arrear.

In Laney v. Laney (1892) 64 Hun, 637, 19 N. Y. Supp. 518, it was held

that an administrator in his representative capacity could not receive the rents accruing after the death of the owner, but could collect them as agent of the heirs.

and

The record in Levy's Estate (1868) Tucker, 148, showed that the administratrix collected the accruing rents of the decedent's real estate accounted for the proceeds in her final accounting as assets of the estate. The court held that such rents should not be included in the account as personal property of the estate, but followed the real estate, which descended to the heirs, and that the administratrix acted in the capacity of an agent or trustee of the heirs at law, and for their benefit, and not in her official capacity.

25. North Carolina.

In North Carolina, generally, the rents which accrue after the death of the lessor intestate descend to the heirs, and the administrator has no right to them. But if there remains a deficiency after the entire personal estate of the intestate has been applied to the debts, the administrator may then obtain a decree for the sale of the land and for the rents received by the heirs after the death of the ancestor. Washington v. Sasser (1849) 41 N. C. (6 Ired. Eq.) 336; Hinton v. Whitehurst (1874) 71 N. C. 66; Moore v. Shields (1873) 68 N. C. 327.

In Shuffler v. Turner (1892) 111 N. C. 297, 16 S. C. 417, it appeared that the administrator entered on the real estate of his intestate, and collected the rents which accrued on the lease during the eleven years of his administration. No contract appeared whereby he was to have the rents as assets of the estate. The court held that the administrator held the rents as trustee of the heirs, and not as administrator, and was answerable to the heirs for the rents he had collected for them during the period of his agency.

In an early North Carolina case it was held that a creditor could not enter on the lands of a deceased debtor and keep out the heir, the heir

being entitled to the rent as well as the lands until judgment and sale. Harrison v. Wood (1836) 21 N. C. (1 Dev. & B. Eq.) 437.

In Fleming v. Chunn (1859) 57 N. C. (4 Jones, Eq.) 422, it was held that the heirs were entitled to the rent which accrued after the ancestor's death, but that the administrator was entitled to the rent which accrued and became payable during the lessor's lifetime.

26. Ohio.

The heir is entitled, as against the administrator, to the rents and profits of the land during the continuance of the possession by the heir, until the actual sale of the land by the administrator for the payment of the debts of his intestate; and neither the filing of the petition by the administrator to sell land before the rents commenced accruing, nor the order of sale after they began to accrue, nor the declaring of the estate probably insolvent by the proper court, had the effect of enlarging the rights of the administrator in reference to the accruing rents. Overturf v. Dugan (1876) 29 Ohio St. 230. In that case the court said: "The heirs were still legally in possession as owners of the land, and entitled to the rents; and, as has been said, the lien in favor of the creditors was upon the land itself, and not upon the rents accruing during the time intervening between the death of the intestate and the sale by the administrator. Rents thus accruing are not, and cannot be said to be, assets belonging to the administrator of the intestate's estate, for they were not in existence at his death, and the creditors of the intestate cannot claim them for the payment of his debts, for they never belonged to him."

The holding in Conger v. Atwood. (1875) 28 Ohio St. 134, 22 Am. Rep. 362, was that an administrator, who, without due authority, collected the rents of his intestate's real estate and used them as assets in the payment of the debts of the estate, was liable therefor to the parties entitled to the rents, and could be proceeded against in his representative capacity.

And it has been held that where an administrator receives rents and uses them in the payment of the debts of the estate, he is bound to account for them to the court as assets. Campbell v. McCormick (1886) 1 Ohio C. C. 504, 1 Ohio C. D. 281.

Where an administrator, through a family arrangement and by advice of friends of an infant heir, received the rents and applied them to the payment of debts instead of selling the infant's land, and the arrangement would have been beneficial to the heir if he had lived, his administrator could not recover such rents from the administrator of his ancestor, although by this arrangement it worked a loss to the infant's mother, and again to his uncles, where the mother did not object. White v. Turpin (1865) 16 Ohio St. 270.

27. Oklahoma.

In Moseley v. McBride (1914) 40 Okla. 270, 138 Pac. 138, it appeared that the administrator brought action to recover rents in arrear on his intestate's real estate, which had accrued after the death of the owner. The intestate had leased the land during his lifetime, and the tenant continued to occupy the premises after the lessor's death. It was held that the administrator had no authority to sue for the recovery of rents accruing after the death of the landlord, the court saying that existing statutes did not alter the common-law rule which entitled the heirs to such rents.

28. Pennsylvania.

The rule was stated in M'Coy v. Scott (1828) 2 Rawle, 222, 19 Am. Dec. 640, that the rents accruing on an intestate's leased lands after his death belong to his heirs, and that an administrator who undertakes to receive such rents acts as trustee for the heirs, and not for the creditors.

So, it was held in Adams v. Adams (1835) 4 Watts, 160, that an administrator had no right to demand and to recover from the heirs of the intestate, the rents, issues, and profits of the real estate descending to them, and which, after accrual, had been received by them after their ancestor's

death. The heirs were not answerable for such rents to the administrator for the payment of debts, even though he had paid the same out of his own funds.

The court said in Giblin's Estate (1883) 2 Kulp, 292, that, inasmuch as the real estate of the intestate descended to his heirs at the instant of his death, and remained there until sold by order of court, the heirs had a right to collect the rents thereafter accruing, regardless of whether the estate were solvent or insolvent.

"Upon the death of the lessor the reversion descends to his heirs, and they are entitled to demand and receive the rents which shall become payable afterwards." Johnston V. Smith (1832) 3 Penn. & W. 496, 24 Am. Dec. 339.

In Pepper's Estate (1855) 1 Phila. 562, it was held that, after the death of the decedent, his real estate descended to his heirs, who became entitled to the rents and profits thereof. If such accruing rents were received by the administrator, they were merely received in trust for the heirs, and could not be applied as assets to the payment of the decedent's debts.

The court in Merkel's Estate (1890) 131 Pa. 584, 18 Atl. 931, said: "Lands descend to the heir. The rents

and profits accruing from them after the death of the owner belong to the heir, and the administrator is not authorized to receive them." It appeared that on the death of the lessor intestate the administrator claimed the royalties which accrued after the death of the lessor from the mines which he had owned. It was held that the administrator had no right to the rents of the real property. But, on application to the court, a sale might be ordered if the personal estate proved insufficient to satisfy the debts.

The language of the court in Haslage v. Krugh (1855) 25 Pa. 97, was to the effect: "Land descends to heirs and not to administrators; and the heirs, as owners, have the right to the rents. The tenant has no excuse for paying the rent to the