Lee's Adm'r v. Downey , 68 Ala. 98 ( 1880 )

BEICKELL, C. J.

Tbe statutes do not confer on an •executor or administrator any estate or interest in tbe lands of tbe testator or intestate. As at common law, if devised, tbey pass to tbe devisee ; or; if not devised, they descend to the heir at law; who alone is entitled to possession. The executor or administrator may, if a necessity exists, which would authorize the Court of Probate to order him to make sale of them, intercept or divest tbe possession of the heir or devisee, and hold the lands, either to derive from their rents funds for the payment of debts, or for that purpose to subject them to sale under a decree of the Court of Probate. Masterson v. Girard, 10 Ala. 60; Smith v. King, 22 Ala. 558; Chighizola v. LeBaron, 21 Ala. 406; Br. Bank Mobile v. Fry, 23 Ala. 770. It is but a bare power over the lands, with whieh the statute elothes the personal representative, to be exercised in the mode, and for the purposes expressed in the statute. While by no act of the heir or devisee can the power be frustrated, the existence of the power itself depends upon the existence of the necessity for its exercise — the payment of the debts of the testator or intestate. When the necessity does not exist — when there are no debts chargeable on the lands — it would be more than an idle and useless ceremony, to suffer the personal representative to disturb the possession of the heir, or of the devisee, or of the alienee of the one or the other. A just and prudent personal representative would not then assert the power, for bis only duty would be, if he could assert it, to receive possession in one moment, and restore it in the next. It is not for any such purposes the statute confers the power, and authorizes its exercise.—Owens v. Childs, 58 Ala. 113.

The lands now in controversy were specifically devised to William D. Lee, who, having entered into possession, aliened .and conveyed them. His possession, and the successive possession of his alienees, continued uninterrupted and undisputed, for nearly or quite ten years, until the commencement of this suit. If there are debts existing against the testator, chargeable on the lands, to the payment of which the personal representative is bound to appropriate them, then the appellant is entitled to the possession, and can maintain the present action. But, if there are no such debts, if he were to recover possession, his only duty would be its immediate restoration; a recovery would not only be unjust, but it would be an idle, useless, expensive ceremony. We do not propose to inquire, whether there had been a grant of letters testamentary remaining in full force, when letters were granted to the appellant. It may, if necessary, be conceded that the grant to him was the first and only grant; the question remains, whether there are debts existing against the testator which it is his duty to pay, and to which he could properly and legally devote the lands.

The only debts of which evidence was given, were simple contracts of the testator, barred by the statute of limitations of six years, unless the running of the statute was interrupted and suspended from the death of the testator until the grant of letters testamentary to the appellant. What may have been the rule of the common law on this point, it is unnecessary to discuss. The statute now, in express terms, declares that no greater period of time than six months from the death of the testator shall, in such ease, be deducted in computing the bar of the statute of limitations.—Code of 1876, § 3244; Pickett v. Hobdy, 63 Ala. 609; Lewis v. Ford, at the present term. Deducting that period, the statute of limitations had perfected a bar as to all these debts, before the grant of letters testamentary to the appellant. It is not in his power to remove it, or by any act, admission, or promise, to revive these debts, so that they would be chargeable on the lands, divesting the possession of the devisee, or of his alienees, and incumbering the estate with their payment.

The Circuit Court, in this view, was notin error in instructing the jury the appellant was not entitled to recover. The judgment is affirmed.