Masterson v. Girard's Heirs , 10 Ala. 60 ( 1846 )

GOLDTHWAITE, J.

It seems not to admit of question that by the common law the heir succeeds to rents reserved by his ancestor out of the inherited estate, and may sue for those which fell due after the death of the ancestor. [1 Lomax Dig. 546, § 15; Wright v. Williams, 5 Cowen, 501.] This indeed is not denied, but the defendant insists the rule is different in consequence of the act of 1839. By 'that it is made lawful for administrators and executors to rent, at public outcry, the real estate of any decedent, until a final settlement of said decedent’s estate is effected; and the proceeds shall be assets in the hands of such executors and administrators. [Dig. 199, § 36.] If the terms of that act only are looked to, it is clear they will not extend to divest the right of the heir ; but this act is only one of many which seem together, to ponstitute[a system, and create some important modifications of the common law incidents of descents. Thus by a general statute the real estate of a decedent is made chargeable with his debts. [Dig. 101, § 1.] And by several others, the administrator is invested with the power to proceed in the orphans’ court so as to obtain a decree for the sale of the lands, when the personal estate is insufficient to pay the debts, (Ib. 192, § 2; 224, § 16,) or for the purpose of making more equal distribution between the heirs. [Ib. 224, § 16.] As the power is given to the administrator under these circumstances, to cause the lands to be sold, there is great reason to suppose the act of 1839 was to enable the same functionary to obtain control of the rents derivable from the real estate in those cases when in his discretion the interest of the estate will be promoted by resorting to this course. This is the more probable, as by our statutes of descents and distribution, the real and personal estates go to the same person when the debts are paid. There can be no injury to the heir when the rents of the real estate are expended in aid of the personal estate, as this diminishes the chances for requiring a sale of the real estate. In accordance with these views, we have held, the administrator may bring the action for forcible detainer, &c. against a tenant holding over. [Phillips v. Gray, 3 Ala. Rep. 226.] And that he is entitled to sue for rent due, on an implied agreement for use and occupation falling due after the death of his intestate. [Harkins v. Pope, at this term.] These decisions indicate, that whenever the decedent was possessed of the estate at his death, the administrator may entertain the necessary suit to regain possession, or even to partition the land.

But we apprehend, the estate, notwithstanding, descends to the heir, and that he is invested with the title, and may exert it with all its incidents until the administrator by notice to the tenant, or by actual suit, indicates his intention to assert the power reposed in him by the statute. It is true, this involves the difficulty, that a suit commenced by the heir, might be defeated by the claim of the administrator, but we apprehend this is not more serious than is already experienced when a sale is made by the heir after his ancestor’s death. In either case we apprehend the title and right of the heir is subject to the exercise of the statute power, but where the power is not asserted or exercised by the administrator, we consider the heir is entitled to the estate, and its incidents, as &X common law.

The result of these conclusions, in the present case, is, that the plaintiffs are entitled to this action, and the facts stated! in the plea present no bar.

Judgment affirmed.