Dunbar v. Dunbar

• Decision Date: 01 February 1831
• Citation: 3 Vt. 472
• Parties: ALMIRA DUNBAR v. JOHN and JOSEPH DUNBAR, executors of OLIVER DUNBAR
• Court: Vermont Supreme Court

3 Vt. 472

ALMIRA DUNBAR v. JOHN and JOSEPH DUNBAR, executors of OLIVER DUNBAR

Supreme Court of Vermont, Windsor

February, 1831

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This was an appeal from a decree of the court of probate for the district of Hartford, allowing the account of the executors on the settlement of the estate of Oliver Dunbar. The testator, by his will, bequeathed all the personal estate, except some trifling articles, to his widow, Almira Dunbar; and also the home farm to her, for life, and remainder over to John and Joseph Dunbar, the executors, upon certain trusts and conditions. A farm called the Ben Campbell farm, and a small piece of land adjoining, were devised to Joseph Dunbar, one of the executors. A farm called the James Campbell farm, or rather a certain part of it, lying east of the road, was devised to William B. Waldron, Oliver D Waldron, and Andrew Jackson Waldron, minor children of Jonathan Waldron. upon their paying in money or labor two hundred dollars to Almira Dunbar, the testator's widow. The widow continued in possession of the home farm, taking the profits, during the first season after her husband's death, when she released her life estate to the executors, by bond, & c., and they immediately entered, and had ever since taken the rents and profits. Joseph Dunbar immediately entered, on the death of the testator, (which happened 1st May, 1828,) into possession of the Ben Campbell farm, and had ever since taken the rents and profits. The executors, at the end of one year from the death of the testator, put the guardian of the young Waldrons into possession of the James Campbell farm devised to them, without payment, or securing to be paid, the $ 200, to the widow, and had not rendered any account for the rents and profits. The debts and expenses of administering had all been paid out of the personal estate. The executors rendered their account to the court of probate, and, in the account rendered, no credit was given for the rents and profits of any part of the real estate. The court, however, ordered the executors to account for one year's rent of the Ben Campbell farm, which was accordingly credited; and the court refused to order them to account any further for rents and profits; nor had the executors paid the widow the $ 200, charged on the estate devised to the young Waldron children, nor charged the estate with such payment. From the allowance and acceptance of this account, an appeal was taken to this Court by the widow.

Mr. Marsh, in behalf of the appellant, contended,--1. That the executors were liable to account for the rents and profits of all the real estate, till a final settlement of the estate, and until the estate devised is set off to the devisees by order of the court of probate; and that these rents and profits are to go into a general fund for the payment of debts, or for the benefit of those, who are entitled, under the will, to the residuum of the personal estate. 2. That the executors cannot exhibit, and have their accounts settled, until they put the widow in possession of the two hundred dollars, which is a lien on the estate devised to the young Waldrons.

1. The executors are liable to account for the rents and profits of all the real estate, till the devisees are entitled to enter under an order of the court of probate. No such order has passed the court. On the death of any one, whether testate or intestate, all the estate vests in the executor or administrator, in trust to be disposed of according to law, either under the will, or under the statute of descents, or distribution, as the case may be. The executor or administrator is required by the statute, to cause to be made a true and perfect in ventory of all the estate, both real and personal, of the deceased, and exhibit the same to a committee of appraisal, who are to return their appraisal to the court of probate, and deliver an attested copy to the executor or administrator; and must account for the inventory at the appraisal, & c.--Stat. p. 340, s. 41, 44. The personal estate of every person deceased (with certain exceptions) shall stand chargeable with the debts and funeral expenses of the deceased; and if the same shall be insufficient, the real estate, except the widow's dower, shall stand chargeable for such part thereof as the personal estate shall be insufficient to pay.--Stat. 341, s. 46. The executor and administrator, neglecting to sell real estate (when necessary, and when he can obtain license) for the payment of debts, shall be deemed guilty of waste.--Stat. p. 343, s. 51. It is made the duty of executors and administrators to keep, and maintain in tenantable repair, all houses, buildings, and farms, appertaining to the estate of the deceased, out of the avails thereof, and the same to deliver over to the devisees or heirs, in such repair, at the time the probate court shall direct.--Stat. p. 344, s. 55. Executors and administrators are empowered to commence, and maintain, an action of trespass quare clausum fregit, or ejectment, or any other proper action, to recover the seizin or possession of any houses, lands, tenements or hereditaments, or any damage done thereto, in the right of the testator or intestate; or may prosecute any such action, already commenced by testator or intestate, to the use of the devisees, heirs or creditors of such estate, as the case may be; and no such action shall be maintained by any heir or heirs, devisee or devisees, until such estate be set off to them by order of the court of probate.--Stat. p. 346, s. 63. It is made the duty of the administrator of every solvent intestate estate, to furnish, our of such estate, a support for all minor children of the intestate, until they arrive at the age of seven years; unless the heirs shall give bonds to furnish the same.--Stat. p. 344, s. 56.

It is understood to have been often decided in this Court, that all heirs and devisees must take and hold through the administration; and the statute seems to be express to this point. The heir or devisee has no right of entry, until he obtains it through an order of the court of probate, on the final settlement of the estate. It would seem, therefore that he can have no right to the accruing rents and profits, till his right of entry is complete by such order. The whole and entire right of possession, and all remedies known in law to obtain it, are expressly given to the executor, and as expressly taken from the heir and devisee. The action of trespass and ejectment are given to the executors to enable them to recover for any damage done to the real estate; and this for damage done during the life time of the testator. Such damage, when recovered by the executor, must be personal estate, and go into the personal fund, for the general purposes of the estate; that is, in the language of the statute, (63d section,) " to the use of the devisees, heirs or creditors, as the case may be." Such damages, and also the rents and profits, when received, are undoubtedly personal estate, and come into the hands of the executor as such, and as such must be by him inventoried; and the statute, (sec. 46,) makes the personal estate chargeable in the first instance with the debts The 55th section makes it the duty of the executor to keep, & c., the real estate in repair out the avails, that is, the rents and profits; but how can he do this, if the devisee has a right to the immediate perception of the rents and profits? And how is the administrator of a solvent intestate estate to provide for the children under seven years of age, " out of such estate," (sec. 56,) if the older heirs have a right to enter immediately upon their shares. " Out of the estate," probably means out of the rents and profits; as no authority is any where given to sell for this purpose. The executors, in this case, no doubt had a right to take immediate possession. When possessed, however, they hold not as devisees, but as executors; that is, in trust, or to account--to account for the lands if sold, and for the rents and profits, to the general fund, on the final settlement of the estate. It will be observed, that the will does not, in terms, make any provision for the payment of debts, funeral expenses, or the expense of administration; but the law charges all these on the personal estate in the first instance. The real estate, with the exception of a life estate to the widow in one farm, is all devised away to others, and the personal estate all, or nearly all, is bequeathed to the widow. The executors, who are also the principal devisees, enter on the real estate, occupy it for themselves without account, and go on and administer the estate, pay the debts, & c., out of the personal fund which is all given to the widow, and constitutes her principal interest in the estate. If the money, arising from the rents and profits of the real estate, were wanted for the payment of debts, and expenses of administration, can it be pretended, that they should go to the devisees, and have the lands sold to raise money for the payment of debts? If not, then the rents must go into the personal fund for that object. If they must go into the personal fund, in that case, it is because they are, in the hands of the executor, personal estate, and, if so, they must go into that fund in every case. There is no other consistent way of reconciling the various provisions of the statute. According to this view of the subject, the rents of all the estate, from the decease of the testator to the time of the final settlement of the estate, and the order of the court of probate to deliver the possession of their respective shares of the real estate to the respective...