Turner v. Kelly , 67 Ala. 173 ( 1880 )

STONE, J.

— When one dies intestate, seized of lands, the title descends, and vests eo instanti in the heir, who can at once claim the rents, and maintain an action for the recovery of the possession. This is not, however, an absolute right. Under our statutes, lands are made subject to debts, and the personal representation is clothed with the power to intercept the descent, claim the rents and the possession, rent out the lands, obtain an order for their sale and sell them, for the purpose of administration, and to pay debts. This is a mere power, but its assertion suspends the heir’s right to the possession ; and if the lands are sold, and sold in legal form, to pay debts, it divests the title of the heir, and forever bars his right of recovery.— Calhoun v. Fletcher, 63 Ala. 574. Under this statutory system of ours, it may, and frequently does happen, that the heir is kept out of the inheritance for a considerable time. And litigation, or other obstructions, may further retard the heir’s right to enter.

Mr. Slatter died in 1853, intestate, leaving heirs. The present bill was filed, for division and settlement of the estate, in November, 1871. Why the possession was not sooner claimed, or why the final decree was not pronounced until a quarter of a century after the death of the ancestor, the record does not inform us. It maintains entire silence on the subject. We feel it our duty to presume there was a good and sufficient reason for this delay, or that the heirs at law acquiesced in it.

Our statute — Code of 1876, § 2265 — has declared the rule for ascertaining the value of advancements. If the value be expressed in the conveyance, that determines the question. If the conveyance does not express the value, then it is to be estimated according to its value when given. Eor the value of the shares in partition or distribution, the statute has expressed no standard. Reason would say it should be the value at the time it becomes the actual property of the heir or distributee. This may, and often does work unequally ; but the advantage is generally in favor of the one advanced. He pays no rent, hires or interest; and if the advancement exceed in value the distributive shares, he is not required to refund. In this case, where there is alleged to be an extraordinary shrinkage of values, the rule works hardly against the children of Mrs. Holly. This is but the accident of the particular case, and furnishes a very unsafe and unsatisfactory basis for the establishment of the rule invoked, which we can but think is a departure, alike from principle, and from the practice which has generally, if not universally prevailed in this State.

The record in the present case does not inform us on what principle the rents of the lands, of which intestate died seized, were distributed. If there was a surplus of rents over and above the wants of the administration, that surplus should have been distributed among the four heirs, in the same proportion as they would severalty share in the residuum of the estate, left after the advancement to Mrs. Holly. This, because she had all the while enjoyed the use and rents of the property advanced to her, and it would be inequitable and unreasonable that she should, in addition to such enjoyment, share equally with her wow-advanced brothers and sister, in the residue of the estate.— White v. White, 3 Dana, 374, 377. But as we have said, this question is not raised by the present record.

There is a loose expression —not a decision — in Burton v. Dickinson, 3 Yerg. 112, tending to support appellant’s theory of this case. Powell v. Powell, 9 Dana, 12, seems to adopt the time of division as the true time for fixing the value of the non-advanced property. We think this the correct and only safe rule, so far as the corpus of the property is concerned.— Warfield v. Warfield, 5 Har. & J. 459. Bents and hires, as we have shown, fall under a different rule. Toomer v. Toomer, 1 Murph, (N. C.,) 93, is so meagerly stated, that but little can be gathered from it. True, the opinion says the lands not advanced “ ought to be valued at the time of his (decedent’s) death.” The report does not inform us what length of time elapsed, if any, between decedent’s death and the division, nor is any reason given for the opinion. For aught that we can know, the heirs acquired the possession immediately on the death of the ancestor, and if so, the time of the death was the time to fix the value. These remarks are equally applicable to the case of Renaker v. Lafferty, 5 Bush, (Ky.) 88. The case of Dutch’s appeal, 57 Penn. St. 461, settled nothing material to this case. Many inequalities and hardships would grow out of the rule appellants ask us to adopt. We need not specify them, as they will occur to every one. We concur with the Chancellor, and his decree must be affirmed.