Kern v. Cooper

• Decision Date: 18 December 1903
• Docket Number: Nos. 13,681 - (136).,s. 13,681 - (136).
• Parties: GUSTAV KERN v. CHARLES A. COOPER and Another.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

91 Minn. 121

GUSTAV KERN v. CHARLES A. COOPER and Another.¹

Nos. 13,681 - (136).

Supreme Court of Minnesota.

December 18, 1903.

Action in the district court for Benton county by plaintiff, as administrator of the estate of Harriet A. Kern, deceased, to recover possession

of certain land belonging to the estate of deceased, and $200 for the detention thereof. The case was tried before Searle, J., who directed a verdict in favor of plaintiff for possession of the land and $100 for its detention. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendants appealed. Affirmed.

Stewart & Brower, for appellants.

Geo. H. Niles and Lindbergh & Blanchard, for respondent.

LEWIS, J.

Harriet A. Kern, wife of respondent, was owner of certain premises, and died intestate, leaving her surviving, as sole heirs, a husband and five minor children. Respondent was appointed administrator of the estate, and guardian of the minor children. Shortly thereafter, on behalf of himself and as guardian of the minors, he executed and delivered to one Maria Brick a lease of the land for the term of five years; the consideration being an annual cash rental, which was later assigned to a third party for the benefit of appellant Cooper. After the execution of the lease, respondent, on behalf of himself and as guardian of the minors, entered into a contract with Cooper whereby he agreed to convey the land in consideration of a stipulated amount; part to be paid in cash, and the remainder on time. Thereafter Cooper entered into a contract with appellant Gerzema to sell to him the same lands, and, upon paying a part of the purchase price, Gerzema went into immediate possession, with respondent's consent. The present action was brought by respondent, as administrator, to recover possession of the lands. The answer set up the lease and the contracts of sale, and appellants claim possession thereunder. At the close of the case the court instructed the jury to return a verdict in favor of respondent for recovery of the property, and appeal was taken from an order denying appellants' motion for judgment in their favor notwithstanding the verdict, or for a new trial.

For the purposes of this case, we shall assume, without deciding, that, as between the guardian, for himself and the minors he represented, appellants were entitled to possession of the premises under the lease and contracts. The real question involved is this: Pending the time of the settlement of an estate, is the administrator entitled to the possession of real estate, when it is in the possession of the heir, without affirmatively showing that possession is necessary for the purposes of administration? If such right exists at all, it is by virtue of section 4496, G. S. 1894, which reads:

"The executor or administrator shall have the right to the possession of all the residue of the real and personal estate of the decedent, and to receive the rents and profits of the real estate, until the estate is settled,...