Ela v. Ela

• Decision Date: 16 March 1900
• Citation: 70 N.H. 163,47 A. 414
• Parties: ELA v. ELA (two cases).
• Court: New Hampshire Supreme Court

47 A. 414

70 N.H. 163

ELA

v. ELA (two cases).

Supreme Court of New Hampshire. Merrimack.

March 16, 1900.

Appeal from probate court, Merrimack county.

James H. Ela and Jacob Ela filed claims against the estate of George W. Ela. From a report of a commissioner disallowing plaintiffs' claims, they appeal. Case discharged.

Joseph Ela died at Mobile, Ala., February 21, 1861, intestate, leaving as heirs five brothers and sisters, of whom Elizabeth Ela was one. She died November 22, 1867, leaving as heirs three children, two of whom are plaintiffs. April 28, 1863, George took out administration in this county upon Joseph's estate. Joseph owned real estate in Mobile, which was occupied by W. T. Ayers. George never took out administration in Alabama, but collected the rents of Ayers from 1861 to June, 1872, and accounted for them, as administrator, in the probate court for this county, in November, 1873. The annual rental was $675, and he collected this amount in 1873 for rents to June of that year. Ayers continued to rent the building of George up to 1883. George settled a second account in February, 1892, but did not Include the rents collected after 1872. On learning that these subsequent rents were not included, the plaintiffs made a demand upon him for their respective shares. To this demand he made an evasive answer, and to a subsequent like demand no answer. The court found that the rental remained the same after 1873 as before, and that George collected it during the years for which the plaintiffs seek to recover. George purchased James' interest in the premises November 15, 1875, and Jacob's interest April 26, 1879. He died in 1803, and the defendant is administrator of his estate. The defendant pleads the general issue, and that the cause of action did not accrue within six years of George's decease.

Sargent & Niles, for appellants.

John M. Mitchell, for administrator.

PIKE J. The finding of the court that the rental remained the same after 1873, and that George collected the rents during the years for which the plaintiffs seek to recover, was justified by the evidence. "A state of things once shown to exist is presumed to continue until something is shown to rebut the presumption." Wells v. Burbank, 17 N. H. 393, 409; State v. Colston, 53 N. H. 483. Not only was there no evidence that tended to rebut the presumption that George continued to collect the rents after 1873, but there was evidence that tended to its support. When the plaintiffs, on learning that George had not included the rents in his second account, made a demand upon him for their respective shares, George made an evasive answer, and to a subsequent like demand by letter no answer was returned. The demands thus made implied a claim that George had collected the rents since 1873. To this he was naturally called upon to make reply, and his evasion and failure to explain was evidence of an admission on his part that he had made the collections in dispute. Corser v. Paul, 41 N. H. 24, 29; Roberts v. Rice, 69 N. H. 472, 45 Atl. 237.

The plaintiffs say that the rents in question were collected by George either as executor de son tort or as a co-tenant, and that in either event they are entitled to recover their shares from his estate. An executor de son tort is one who intermeddles with the personal property of a deceased's estate before an administrator has been appointed. Williams, Ex'rs (6th Ed.) 296; Schouler, Ex'rs (2d Ed.) § 184; Leach v. Pillsbury, 15 N. H. 137, 139; Brown v. Leavitt, 26 N. H. 493, 494; Emery v. Berry, 28 N. H. 473, 481. The estate over which George assumed control was not personal property,...