Burdyne v. Mackey
| Decision Date | 31 May 1842 |
| Citation | 7 Mo. 374 |
| Parties | BURDYNE v. MACKEY, EXECUTRIX OF MACKEY. |
| Court | Missouri Supreme Court |
ERROR TO THE ST. CHARLES CIRCUIT COURT.
CAMPBELL, for Plaintiff.
BATES, for Defendant.
J. Mackey, as executrix of James Mackey, deceased, instituted an action of ejectment in the St. Charles Circuit Court against Amos Burdyne, who, it was proved, was in possession of the tract of land in controversy. Mackey obtained a verdict and judgment below, and the cause is brought here by writ of error. James Mackey, it seems, claimed a large tract of land, partly situated in St. Charles county, by virtue of a Spanish concession and survey, of which the lot in dispute is a parcel. This claim was presented to the first board of commissioners appointed to determine the validity of French and Spanish claims to land in the then District of Louisiana, now State of Missouri, and was rejected; afterwards it was reported for confirmation by the board of commissioners created by an act of Congress of July 9th, 1832, and was confirmed by a law of the 4th July, 1836, to James Mackey, or his legal representatives. During the interval between the first rejection and the ultimate confirmation of this claim in 1822, James Mackey departed this life, leaving a will, dated 16th March, 1822, by which, after some special bequests, he devised his lands to his wife, J. Mackey, the defendant in error, and his seven children, to be equally divided among them, and conferred on his wife a control of the land devised to his children, until they should marry, or attain the age of twenty-one years. Under the will, letters testamentary were granted to J. Mackey and Antoine Soulard, the executrix and executor named in the same. This suit was commenced by J. Mackey, as surviving executrix of the last will and testament of James Mackey, deceased. Burdyne, the defendant, attempted to show an outstanding title in others, by the production of evidence of a grant of the same land to one Clamorgan, by Lieut.-Governor Trudeau; and also relied on the length of his possession, which commenced, as it appears from the evidence, in the year 1816.
The principal question arising from the facts here set forth and presented to the court for its determination, is, whether an executor or administrator, as such, can maintain an action of ejectment for lands of which his testator or intestate died seized; or, in other words, whether, upon the death of an individual, the lands of which he was seized will descend to his executor or administrator, or to his heirs? It is not pretended that such a claim for the executor or administrator has any countenance from the common law. By that law the executor or administrator was only entrusted with the personal estate. This included leases of terms of years, and for them he might maintain an ejectment; but the executor or administrator, as such, had nothing to do with freehold estates. This right must be derived from statute, and it must be supposed that such an innovation, so much at war with the opinion of all those instructed in the science of the common law, the introduction of which into our code must unsettle and disturb so many principles heretofore established, should derive its existence, not from mere implication, but from express enactment. Reference has been made to laws which regulate the administration of the real estate of a deceased person, at a period prior to the introduction of the common law into this State, in order to lay some foundation for the right of the executor or administrator to maintain an ejectment. But it must be obvious, that since the introduction of the common law, an event which took place in the year 1816, this question must be determined by reference to its principles, and the statute laws now in force, and not by any laws, usages or customs which may have prevailed here before that time. The phraseology of the statute regulating Descents, so far from favoring this right, is rather against it, as it casts the descent of the lands on the heirs, subject to the payment of debts. The provisions of the administration law, authorizing the administrator to take possession of the title papers relating to lands, and requiring him to inventory the real estate, and give a bond, whose penalty shall cover both the personal and real estate, are not...
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Hall v. Farmers and Merchants' Bank
...... otherwise maintain a suit in ejectment and to set aside a. deed made and recognized by Dr. Kerfoot himself. Thorp v. Miller, 38 S.W. 929; Burdyne v. Mackey, 7 Mo. 374; Dillinger v. Kelley, 84 Mo. 561. (4) While the. trust, in this case, reposed in the bank by Dr. Kerfoot was. fully executed ......
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Kelly v. Clancy
...though he could not for a freehold, for that descended to the heirs, and the executor or administrator had nothing to do with it. Burdyne v. Mackey, 7 Mo. 374. This statute enables him to maintain forcible entry and detainer, or unlawful detainer, where formerly he was obliged to bring ejec......
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Kelly v. Clancy
...could not for a freehold, for that descended to the heirs, and the executor or administrator had nothing to do with it. Burdyne v. Mackey, 7 Mo. 374. This statute enables him to maintain forcible entry and detainer, or unlawful detainer, where formerly he was obliged to bring ejectment. Las......
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Orchard v. Wright-Dalton-Bell-Anchor Store Co.
...its condition on the death of her husband? By the common law it descended to the heirs; and in the case of Mackay's Adm'r v. Burdine [Burdyne v. Mackey, 7 Mo. 374], notwithstanding an ingenious argument was drawn from our administration act, to show that the common law had, in this respect,......