Brigham v. Elwell

• Decision Date: 06 January 1888
• Citation: 145 Mass. 520,14 N.E. 780
• Parties: BRIGHAM et al. v. ELWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 520

14 N.E. 780

BRIGHAM et al. v. ELWELL.

Supreme Judicial Court of Massachusetts, Worcester.

January 6, 1888

COUNSEL

F.P. Goulding, for plaintiffs.

There was evidence to warrant the finding that it was arranged or agreed between the plaintiffs and the sole devisee of the farm that the former should occupy the farm and account for the rents and profits for the benefit of the estate, and that they did so occupy it through the year 1884, and did keep and render an account, as executors, of rents and profits. This evidence controlled any presumption that Brigham was occupying as devisee. The defendant's proposition that the parties were not competent to make such an arrangement or agreement cannot be maintained. It might have force if this were a proceeding to enforce the agreement as executory between the parties. The question is not what one of the executors might have compelled the other, in his capacity as devisee, to do, but whether, as matter of fact the executors, with the consent of the party in interest were occupying the farm for the benefit of the estate. If so they were chargeable, as executors, with the rents and profits, and, as a consequence, had title to them. A similar relation existed in Stearns v. Stearns, 1 Pick. 157; the administrators being two of the heirs at law of the intestate. The statutes assume that the executor or administrator may sometimes, by acquiescence of the heirs or devisees, receive the rents and profits of the real estate, for the benefit of the estate, and deal with the amount with which he is charged. St.1789, c. 11,§ 1; Rev.St. c. 67, § 6; Gen.St. c. 98, § 8; Pub.St. c. 144, § 5; Edwards v. Ela, 5 Allen, 87; Adams v. Palmer, 6 Gray, 338; Choate v. Arrington, 116 Mass. 552; Brooks v. Jackson, 125 Mass. 307; Almy v. Crapo, 100 Mass. 218, 220. The very case provided for by the statute is made by the facts. The only party in interest, except the executors, was Josiah A. Brigham, the devisee. His filing the account containing the charge for income constituted an assent to it. If the plaintiffs actually occupied the real estate under such an arrangement, the income was their property, as against any attaching creditor of the devisee. The creditors of the devisee had no interest in or control over the exercise of his choice in assenting to the occupation by the executors, and there is no allegation or proof of fraud in the exercise of it.

T.G. Kent and G.T. Dewey, for defendant.

The plaintiff Josiah A. Brigham, in his personal capacity, at the time of the attachment was the owner of the hay and cider attached, which were the product of the farm, in 1884, unless they became the property of the executors, by virtue of some contract or agreement between said Josiah A. Brigham and the executors of said Josiah A. and William Curtis. The property attached was the product of the farm after the death of the testator, and the estate has never been sold for payment of debts. Brooks v. Jackson, 125 Mass. 307, and cases cited; Almy v. Crapo, 100 Mass. 218. There is no evidence in the case except the testimony of Josiah A. Brigham, who is seeking to avoid an attachment of his own property, made to secure his private indebtedness. If there is any evidence of an attempt to transfer this property from Josiah A. Brigham to the executors, there is nothing in the evidence that shows any consideration for the transfer, nor is there any evidence of any delivery, actual or constructive, of the property. The transaction would be nothing more than a gift without delivery, and it would be void for fraud against creditors, and for want of delivery. The transaction disclosed by the evidence may have been intended as a lease of the premises for the time when the crops were produced. This would seem to be the result of the affirmative answer to the question submitted to the jury by the court. If this is what the parties attempted, the contract would be void for want of parties. In the absence of statute provision like 21 & 22 Vict. c. 35, § 21, no such transfer could be made. Curtis, the other executor, could not act as the agent of his co-executor. Turner v. Hardey, 9 Mees. & W. 770. If he could, the same difficulty would arise that Brigham, through his agent, was contracting with himself in acquiring the property. The court erred in not giving, in substance, the instruction prayed for by the defendant on this point. The cases in this commonwealth which treat of the rights of parties to the products of real estate of a deceased person deal only with the subject of the liability of the executor or the administrator, under the peculiar circumstances in which they have received those products, to account for them. Stearns v. Stearns, 1 Pick. 158; Newcomb v. Stebbins, 9 Metc. 540; Palmer v. Palmer, 13 Gray. 326; Towle v. Swasey, 106 Mass. 107; Choate v. Arrington, 116 Mass. 552; Brooks v. Jackson and Almy v. Crapo, supra; Choate v. Jacobs, 136 Mass. 297. The most that can be claimed on the testimony, which is all reported, is that it was agreed to use the hay, or some portion of it, to feed the stock till it should be sold.

OPINION

W. ALLEN, J.

The jury found that the hay and cider were produced by the plaintiffs from the farm while they carried it on as executors, under an arrangement with the devisee that they should carry it on, and take the proceeds, and account for them as assets. Income of the real estate of a testator so received by his executors is assets of his estate. Pub.St. c. 144, § 5; Stearns v. Stearns, 1 Pick. 157; Palmer v. Palmer, 13 Gray, 326; Choate v. Arrington, 116 Mass. 297; Edwards v. Ela, 5 Allen, 87; Brooks v. Jackson, 125 Mass. 307; Adams v. Palmer, 6 Gray, 338; Newcomb v. Stebbins, 9 Metc. 540; Almy v. Crapo, 100 Mass. 218; Towle v. Swasey, 106 Mass. 100. The direct question is whether the property in the hay and cider was in the plaintiffs as executors; and that involves two questions: Whether the fact that one of the executors was also the sole devisee of the land prevented the executors from occupying it for the benefit of the estate, with the assent of the devisee, so as to be chargeable with the income; and whether, if they did so occupy the farm, its produce, while it was carried on by the plaintiffs, belonged to them in their representative, and not in their personal, capacity.

1. The presumption that a devisee of land who enters upon it, enters under his title as devisee, may be overthrown. He may enter under another title, and occupy in another character, than that of devisee. If he is also sole executor, it would seem that he would have the power to occupy as executor for the benefit of the estate. What would constitute or prove such an occupancy, so as to make the rents and profits assets, is a very different question from that of the power to so occupy. In Newcomb v. Stebbins, ubi supr...