Eoff v. Thompkins

• Decision Date: 31 October 1877
• Citation: 66 Mo. 225
• Parties: EOFF, Plaintiff in Error v. THOMPKINS.
• Court: Missouri Supreme Court

66 Mo. 225

EOFF, Plaintiff in Error

v.THOMPKINS.

Supreme Court of Missouri.

October Term, 1877.

Error to St. Louis Court of Appeals.

Ejectment, brought by plaintiff as devisee under the will of Mrs. Long. Defendant was tenant in possession and had leased the premises in controversy from one Bushile, executor of Mrs. Long. The lease was made under the order of the probate court of St. Louis county.

John Burke for plaintiff in error

An executor, as such, cannot maintain or defend in ejectment. Burdyne v. Mackey's ex'r, 7 Mo. 374. He takes no interest in the real estate of his testator, but the naked power to sell to pay debts after the personal assets are exhausted. Aubuchon v. Lory, 23 Mo. 99; Chambers v. Wright, 40 Mo. 482; Foltz v. Prouse, 17 Ill. 487; Gibson v. Farley, 16 Mass. 280; Stinson v. Stinson, 38 Me. 593; Mills v. Merryman, 49 Me. 65; Smith v. Bland, 7 B. Mon. 21; Kimball v. Sumner, 62 Me. 305; Lucy v. Lucy, 55 N. H. 9.

SHERWOOD, C. J.

The circuit court held that inasmuch as the probate court had ordered the executor to lease the land in question, and the executor complied with the order, this was a bar to the ejectment prosecuted by the plaintiff devisee under the will of the former owner.

We are clear that this ruling, affirmed as it was, both in general term and by the court of appeals, was correct. The statute expressly authorizes executors, &c., to lease the real estate of their decedents, when so directed by competent authority, and to receive and collect the rents. 1 Wag. Stat., p. 89, § 48.

When a man dies, his real estate, though technically descending to his heirs, does so cum onere--immediately comes into the custody of the law, to be administered in due course. If the above provision is possessed of any effective meaning or force, the right of heirs or devisees is most manifestly subordinated to that obtained under the order of the probate court. As well might the heirs of a deceased bankrupt claim the right of possession of his realty, as the plaintiff in the present instance. And the fact that the realty is transferred to the assignee in bankruptcy by operation of law, by no means impairs the analogy between the two cases, since after satisfying the demands of the bankrupt's creditors, if any real estate be left, it would go to his heirs, and so it would also, under our law if not needed in the progress of administration. But until this fact be ascertained, after an order for leasing be made, the whole estate is in custodia legis, there to remain till, as stated in section 49, the court, satisfied that the real estate “need not be sold or leased,” orders the executor to deliver possession to those entitled thereto. And our view of the end designed to be accomplished in this regard by the above mentioned sections, finds abundant confirmation in that provision of the...