Broadwell v. Banks

• Decision Date: 10 January 1905
• Docket Number: 8.
• Citation: 134 F. 470
• Parties: BROADWELL v. BANKS.
• Court: U.S. District Court — Western District of Missouri

134 F. 470

BROADWELL v. BANKS.

No. 8.

United States Circuit Court, W.D. Missouri, Western Division.

January 10, 1905

Thurman wray & Timmonds, for plaintiff.

Cole Burnett & Williams, for defendant.

On the 2d day of March, 1867, Samuel J. Broadwell and wife made a lease of certain real estate in the city of Cincinnati, Ohio to one William W. Dawson for a term of 99 years, renewable forever; the rentals payable at specified periods during each year. The lessor and the lessee were both citizens of Hamilton county, Ohio, at the time of the execution of said lease, and so resided there until their respective deaths. Said Samuel J. Broadwell died in July, 1893, testate, and the Union Savings Bank & Trust Company of said city was duly appointed and qualified as his executor. By the terms of his last will, and codicil thereto, he devised the leased premises to the plaintiff, his wife, together with all his personal property remaining after the payment of debts and certain legacies. The plaintiff, pursuant to the laws of said state, elected to take under the said will. Said William W Dawson entered into possession of said premises under said lease, and so continued until his death, on the 16th day of February, 1893. Thereafter his heirs at law continued in possession of said premises until the 12th day of November, 1896. Upon his death one Joshua M. Dawson was appointed administrator of his estate by the probate court of said county of Hamilton, and qualified and acted as such. At the time of the decease of said William W. Dawson he was possessed of certain property in the county of Barton, state of Missouri; and on the 20th day of November, 1900, the defendant William R. Banks was by the probate court of said Barton county appointed administrator of the estate of said William W. Dawson in the state of Missouri, and said Banks duly qualified and is acting as such administrator. Said Joshua M. Dawson, as administrator, paid to the plaintiff $2,140 upon account of rents and interest, and the said Joshua M. Dawson, as administrator, instituted proceedings in the probate court of said Hamilton county against the heirs at law of said William W. Dawson, and obtained an order of sale from said court to sell certain parcels of real estate belonging to said Joshua M. Dawson for the payment of the debts of the estate, and on the 11th day of November, 1896, said court confirmed the sale, which had been made by said Joshua M. Dawson, as such administrator, to one William W. Thomas, of said leasehold estate, who received in due form a deed therefor, and the said Thomas entered into possession thereunder of said leasehold premises and estate, and continued in possession thereof until the 1st day of April, 1902. Neither the said Thomas nor the heirs of said William W. Dawson having fully paid the rentals which accrued during said Thomas' tenure of the premises, the plaintiff, on the 14th day of February, 1901, brought suit in the superior court of Cincinnati, in said county of Hamilton, against said Thomas and others, to enforce the lien given by said lease to secure the payment of rentals reserved thereby, and under the proceedings had therein a receiver was appointed to collect and hold the rents, subject to the order of the court. On the 11th day of December, 1901, a decree was entered in said cause directing the appraisement and sale, at public auction, by the sheriff of said county, of said premises, at which sale the plaintiff became the purchaser of all the interest of said Thomas under said lease, on the 21st day of February, 1902, for the sum of $333.34. The said contract of lease obligated the lessee to pay the taxes on the leasehold premises. The first count of the petition is to recover the balance of rentals which had accrued up to the time of the lessor's death. The second count is to recover rentals which had accrued from October,

1809, to April 1, 1902, which accrued after the death of the lessor and the lessee. The third count is predicated of the failure to pay the taxes assessed for the years 1899 and 1900. To this petition the defendant has demurred.

PHILIPS, District Judge (after stating the facts).

In the first count of the petition the plaintiff seeks to recover of the defendant administrator the rentals which accrued and were unpaid at the death of the lessor. In the absence of any statutory provision to the contrary, it is elementary that the rents which accrued during the lifetime of the owner of the leased premises are personal property, and go to his personal representative as assets of the estate, and that, in the absence of any contrary statutory provision or testamentary direction, the rents of real estate which accrue after the death of the owner go to his heirs or devisees, and are not assets in the hands of his personal representative. It is equally elementary law, universally recognized in most of the states of the Union, that the rentals which had accrued at the time of the lessor's decease were choses in action of the testator's estate, and as such they passed on his death absolutely to his executor, and not to the heirs at law or to the legatee or beneficiary under the will. Scruggs v. Scruggs (C.C.) 105 F. 28, loc. cit. This is the law of the state of Ohio. 'If rent has accrued (at the death of the lessor) it goes to the administrator or executor as personal estate. ' Crawford v. Chapman, 17 Ohio, 449.

The petition discloses the fact that letters testamentary were duly granted by the probate court of Hamilton county, Ohio, the domicile of the testator, on his estate. The cause of action, therefore, for the recovery of rentals due and unpaid at the time of the lessor's death, became, on the qualification of the executor, vested by operation of law in the executor, to the exclusion of the heir or legatee. This rule of law was evidently recognized by the pleader in drawing the petition, as he seeks to confer on the plaintiff a right of action by averring that on the 15th day of December, 1893, 'the said savings bank assigned and transferred all of said overdue rents to this plaintiff upon account of the bequest made that at common law the administrator or executor may assign, sell, and transfer the choses in action of the estate held by him. Woerner's American Law of Administrators, Sec. 331. But this commonlaw right in many of the American states has been taken away by statute, as in the state of Ohio. In Jelke v. Goldsmith, 52 Ohio St. 499, 40 N.E. 167, 49 Am.St.Rep. 730, the court said:

'The common law is in force in this state, except as modified by statute. At common law an executor or administrator has full power to sell and dispose of the estate without an order of court, when the sale is in good faith and for the purposes of the estate. * * * Under our statute an executor or administrator may sell the personal property of the estate at public sale without an order of court. Section 6076, Rev. St. By section 6074, the power of an executor or administrator to sell promissory notes, claims, demands, rights of action, etc., belonging to the decedent at his death, is taken away, except as to sale of desperate claims, and bonds and stocks necessary to be sold to pay debts, as provided in sections 6077, 6080, Rev. St.'

As the petition does not bring the alleged transfer of the claim for rentals within either of the exceptions, the act of the executor in transferring sua sponte this claim to the plaintiff was unauthorized and conferred no right of action on her. The petition disclosing the fact that there were debts owing by the estate, the executor held this asset in trust for the payment of such debts; and not until final settlement and an order of distribution by the court of probate pursuant to the testator's will did the executor have the authority to transfer this claim to the plaintiff as residuary legatee. It follows that the demurrer to this count of the petition must be sustained.

Second Count. This count is predicated of the rentals which accrued after the death of the lessor, and presents a more interesting question of law and procedure. The lex loci rei sitae governs chattel interests in land and real estate property. Tiedeman's Real Property, Sec. 873. As the demised premises are located in the state of Ohio, the domicile of the lessor and lessee at the time of the execution of the lease and at the time of their death, the contract of lease was essentially an Ohio contract, and the right of the plaintiff to maintain this action is determinable by...