Noon v. Finnegan
| Decision Date | 05 September 1882 |
| Citation | 13 N.W. 197,29 Minn. 418 |
| Parties | Margaret Noon, Administratrix, v. Andrew Finnegan |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from a judgment of the district court for Hennepin county, entered on an order made by Young, J dismissing the action with costs, on the ground that the complaint does not state facts sufficient to constitute a cause of action. The material defects of the complaint are stated in the opinion.
Judgment affirmed.
Beebe & Rossman, for appellant, cited Gen. St. 1878, c. 77, § 5; c. 52, § 5; Miller v. Hoberg, 22 Minn. 249; Cunningham v. Ashley, 45 Cal. 485; Babcock v Booth, 2 Hill, 181; Valentine v. Jackson, 9 Wend. 302; Woodward v. Howard, 13 Wis. 557; Knox v. Bigelow, 15 Wis. 415; Hei v. Heller, 53 Wis 415; Gary's Probate Law, § 339.
F. Hooker and C. P. Biddle, for respondent.
This action was brought by plaintiff, as administratrix of the estate of John Noon, deceased, to recover damages for trespass committed upon the real estate of her intestate subsequent to his decease. The complaint does not allege that plaintiff has ever asserted her right as administratrix by taking possession of the real estate of the intestate. Neither does it allege that the heirs have not gone into possession, nor that the land is vacant or unoccupied. The action was, on motion of defendant, dismissed on the pleadings, and from the judgment entered thereon plaintiff appeals. The case, therefore, presents squarely the question, whether a personal representative who has never asserted his right under the statute by taking possession of the real estate of the deceased, can maintain an action for trespass committed thereon post mortem decedentis
At common law such an action could be maintained only by the heir or devisee. But the contention is that this rule is now changed by statute. The first statute which plaintiff cites as authority for her right to maintain this action is Gen. St. 1878, c. 52, § 6, which reads as follows: "The executor or administrator has a right to the possession of all the real, as well as personal estate of the deceased. * * *" We adopted this statute from Wisconsin, which had previously obtained it from Michigan. In these states it has been decided that this statute is not imperative, but merely permissive, and that it does not exclude the possessory right of heirs or devisees; that the right of possession is in the heir until the personal representative asserts his right and takes possession; that, on the death of the intestate, the lands descend, as at common law, to his heirs, who may maintain ejectment against third persons, if the personal representative has not taken possession; that the personal representative takes neither title to nor interest in the land, except the mere right to take possession during administration, if he sees fit to do so. Streeter v. Paton, 7 Mich. 341; Marvin v. Schilling, 12 Mich. 356; Campau v. Campau, 19 Mich. 116; Edwards v. Evans, 16 Wis. 181; Jones v. Billstein, 28 Wis. 221; Flood v. Pilgrim, 32 Wis. 376; Marsh v. B'd of Sup'rs of Waupaca Co., 38 Wis. 250. This court has also held that the right of possession to the real estate is in the heir until the personal representative asserts his right to it; that the title vests in the heir upon the death of the ancestor. Paine v. First Div., etc., R. Co., 14 Minn. 65; State v. Ramsey Co. Probate Court, 25 Minn. 22. The principle running through all these cases is that the title to real estate vests, notwithstanding this statute, in the heir at the death of the ancestor; that he has the right to the possession, as before, subject only to the right of the personal representative, if he see fit to assert it; that the personal representative has no title to or interest in the real estate, save only the privilege to claim the possession during administration; and that, until he asserts this right, the rights of the heirs or devisees are unaffected by the statute. It is elementary that, to entitle a party to maintain an action for trespass, he must have had either the possession or title. In the present case the plaintiff does not allege the former, and certainly had not the latter.
The following propositions are, in our opinion, fairly and naturally deducible from the views already expressed: (1) The possession of real estate prima facie devolves upon the heirs or devisees. (2) The personal representative may take possession. (3) Until he does, the heirs or devisees alone can sue for trespasses post mortem decedentis. (4) When he does take possession, the personal representative must sue for the trespass, his possession relating back to the death of his decedent, unless the heirs or devisees have already sued. (5) If the heirs or devisees have already commenced suit, the personal representative, when he takes possession, has a right to be substituted. If they have recovered before he takes possession, upon his taking possession, if the amount recovered is needed to pay debts, he would be entitled to the benefit of the judgment, or, if it has been already collected by the heirs or devisees, to demand that the amount be paid over to him. (6) If it appear that the land is vacant, the bringing of the action by the personal representative for the trespass would amount or be equivalent to taking possession. Our conclusion, therefore, is that there is nothing in this statute that will help out the complaint in this action.
But plaintiff also cites Gen. St. 1878 c. 77, § 5, which reads: "No person is liable to an action as executor of his own wrong for having taken, received, or interfered with the property of a deceased person, but is responsible to the executor as [or] general or special administrator of such deceased person for the value of all property so taken or received, and for all damages caused by his acts to the estate of the deceased." But we are clear that the consideration of the history and object of this statute will show that it has no bearing whatever upon the question of plaintiff's right to maintain this action. This statute we also inherited from the territory of Wisconsin, which, doubtless, copied it from New York, where it was first found in the Revised Statutes of 1830. (The word "as," after the word "executor," is evidently a clerical mistake, and must be read "or.") The only subject of which it treats is the liability of executors in their own wrong, or executors "de son tort," as they are usually called. An executor de son tort was one who, being neither executor nor administrator, interferes with the goods of the deceased; or, as defined by one author, "one who takes upon himself the office of executor by intrusion, not being so constituted by the deceased, nor, for want of such constitution, substituted by the court to administer." Such an intermeddler was, at common law, held subject to all the liabilities of an executor, and estopped by his own acts from denying that he was executor in fact. No intermeddling with the lands of the deceased would charge a person as executor of his own wrong, such interference being a wrong only to the heir or devisee. At common law, when a person had so intermeddled with the personal estate of the deceased as to become an executor de son tort, he thereby became liable, not only to an action by the rightful executor or administrator, but also to be sued by any creditor or legatee. The judgment rendered against him in such action was that plaintiff do recover his debt and costs, to be levied out of the assets of the testator, if ...
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