Clark v. Bundy

• Decision Date: 16 March 1896
• Citation: 44 P. 282,29 Or. 190
• Parties: CLARK v. BUNDY et al.
• Court: Oregon Supreme Court

44 P. 282

29 Or. 190

CLARK v. BUNDY et al.

Supreme Court of Oregon

March 16, 1896

Appeal from circuit court, Lane county; J.C. Fullerton, Judge.

Action by Lemuel A. Clark against H. Bundy and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

G.B. Dorris and A.C. Woodcock, for appellants.

E.O Potter, for respondent.

WOLVERTON J.

This is an action, commenced September 18, 1893, to recover possession of the undivided one-half of certain real property situate in Lane county, Or. The defendants, by their answer, put in issue the material allegations of the complaint, allege title in the defendant H. Bundy, and plead the statute of limitations. The facts which gave rise to the litigation are about as follows: The plaintiff herein and W.J. Clark are the sons of Lemuel A Clark, Sr., and Sarah Clinkenbeard, who were married in the state of Iowa, but were divorced November 18, 1856. Lemuel A Clark, Sr., under the assumed name of Lemuel Klark, and while yet the husband of Sarah Clinkenbeard, went through the form of marriage with Martha Hoffman, at Oregon City, Or., with whom he lived and cohabited until his death, which occurred June 27, 1883. There were born to Lemuel A. Clark, Sr., and Martha Hoffman, three children only,--Martha Clark, afterwards Mrs. J.W. Estabrook; Fannie Clark, married to J.E. Watkins; and Lucy Clark, married to R.C. George,--all of whom were born prior to November 18, 1856. At the date of the death of Lemuel A. Clark, Sr., he held the legal title, and, together with Martha Hoffman, was in the possession of the lands sued for. Having died intestate, James Hoffman, the son of Martha, was on July 5, 1883, appointed administrator of his estate, and continued to act as such until January 7, 1884, when he was discharged. The petition for appointment represents the children of Martha Hoffman by Lemuel A. Clark to be his only heirs, and the inventory contains a schedule of the real property the subject of this action. Trial was had before the court, without the intervention of a jury; and, its findings and judgment being for plaintiff defendants appeal.

The question of the most vital importance in the case is, when did the statute of limitations begin to run against the plaintiff? He contends that the appointment of an administrator suspends the running of the statute in favor of the true heir of the deceased until the real property is surrendered to him by order of the court, or the estate is settled and the administrator discharged, and assigns as a reason therefor that under the Code, during administration or until the real property is surrendered by order of the court, no action for possession will lie in favor of the heir, either as against the administrator or a stranger. We presume that, if such appointment cut off plaintiff's right of action, it would operate as a prohibition, and the pendency of the administration should not be considered as part of the statutory time for bringing the action. Blaskower v. Steel, 23 Or. 106, 31 P. 253. So that, if the reason assigned is the legitimate result of legislative enactments, it is tantamount to a concession of the doctrine contended for. Whether this is so or not we will now consider and determine.

Section 1120, Hill's Ann.Laws Or., provides: "The executor or administrator is entitled to the possession and control of the property of the deceased, both real and personal, and to receive the rents and profits thereof until the administration is completed, or the same is surrendered to the heirs or devisees by order of the court or judge thereof. *** During the time the property is in the possession or control of the executor or administrator, it is his duty to keep the same in repair, and preserve it from loss or decay as far as possible." Section 1192 provides: "The real property of the deceased is the property of those to whom it descends by law or is devised by will, subject to the possession of the executor or administrator, and to be applied to the satisfaction of claims against the estate, as by this chapter provided; but upon the settlement of the estate, and the termination of the administration thereof, so much of the real property as remains unsold or unappropriated is discharged from such possession and liability without any order or decree therefor." And section 1193: "At any time after the filing of the first semi-annual account, any heir, devisee, or legatee may apply to the court, by petition, for an order that he have the possession and rents and profits thereof of the portion of the real property to which he may be entitled, and that payment be made to him of his legacy or distributive share of the personal property of such estate, as the case may be." These are all the statutes the interpretation whereof is required for a solution of the question in hand.

It may be premised that at common law, unless diverted by a valid will, real property descended directly to the heir, and his right of entry became perfect at the death of the ancestor. With such property the administrator had nothing whatever to do, nor was he entitled to the rents, issues, and profits thereof. So that whatever rights the administrator has in this state to the possession, or to the rents, issues, and profits, of the lands of the deceased during administration exists wholly by virtue of statutory regulations. Hanner v. Silver, 2 Or. 336; Jones v. Billstein, 28 Wis. 227. This court held in the former of these cases, which was a proceeding for the partition of land, that under the Code, when administration is completed, the real property descends or goes directly to the heirs at law, without any order or decree therefor. Thus far we have a direct interpretation of the statutes in view. In King v. Boyd, 4 Or. 326, which was a suit by an administrator to set aside a fraudulent conveyance of the intestate, Bonham, J., speaking for the court, says: "The authority of an executor or administrator over the real estate of his decedent, being in derogation of the common law, we think is, and ought to be, strictly limited to his rights and powers as created and defined by statute. *** In this case *** there was no occasion or necessity for the sale of the same, or any part thereof, to pay claims against the estate. In the absence of any showing, by the administrators, that there was some necessity for their interference with the lots in question, for some purpose of administration, recognized by the statute, they had nothing to do with the same, and it was, by law, the absolute property of the heirs of Wm. M. King, to whom it descended." Humphreys v. Taylor, 5 Or. 260, was an action to recover possession of real property, instituted by an administrator, and it was held the action would not lie. In the course of the opinion, Burnett, J., says: "The right possession of the property of the deceased, given to the executors and administrators by section 1088 [now section 1120] of our Code, is a mere statute power, given them only for the benefit of creditors, and properly to be exercised only as the exigencies of the estate might require." These latter cases, although not direct adjudications respecting the statute of limitations as it affects real property pending administration, have a material bearing upon the statutory regulations under consideration. In Mitchell v. Campbell, 19 Or. 212, 24 P. 455, Thayer C.J., says: "Another contention of the appellant's counsel is that the statute does not begin to run in such a case until the administration of the estate has fully terminated. I have no doubt but that the statute does not begin to run while the property is subject to the possession of the administrator, for the purpose of being applied to the satisfaction of claims against the estate, as such possession is not inconsistent with the title of the heir." This language was used with reference to real property in the actual possession of the administrator, when it was claimed the statute could not run, and must be interpreted in the light of this fact as well as others surrounding the case. These are all the Oregon cases to which our attention has been called treating in any manner of the subject in hand; and not being decisive, we are compelled to look elsewhere for more direct authority. Michigan has a statute very similar to ours in all material respects, which received judicial interpretation in several cases. The result may be stated briefly. The statute does not make it imperative upon the administrator to take possession of the real property of the deceased; but he has a right to the possession of such property, and to the rents, issues, and profits thereof, for the purpose of enabling him to settle the estate; and whether he shall exercise the right in either case, or in one and not the other, is largely, if not entirely, discretionary with him. If the personal property was amply sufficient for payment of the debts and expenses of administration, there would seem to be no necessity for the exercise of such right by him; otherwise, it would be his duty to take and maintain possession as a means of speeding such settlement. Until the personal representative has asserted such statutory privilege, the heir has the right to take possession or to maintain ejectment therefor against all other persons whomsoever; and not only this, he may enjoy the rents, issues, and profits also. See Marvin v. Schilling, 12 Mich. 360; Howard v. Patrick, 38 Mich. 802; Chapman v. Craig, 37 Mich. 371; Streeter v. Paton, 7 Mich. 349; Kline v. Moulton, 11 Mich. 381; Campau v. Campau, 19 Mich. 116; Warren v. Tobey, 32 Mich. 45. In Streeter v. Paton, supra, the earliest case upon the question, some stress was laid upon the word "may," used in connection with the receipt of rents and...