Paine v. Paulk , 39 Me. 15 ( 1854 )

Hathaway, J.

— The administrator is the legal personal representative, and has charge of the personal property of the deceased intestate.

The intestate’s real estate goes to his heirs, subject only to its liability “ for the payment of just debts, incidental expenses of sale, and charges of administration,” and does not become assets in the hands of the administrator, unless it become necessary to sell it for those purposes; when, by special license from the court, he may be authorized so to do. R. S., c. 112, § 1.

In the settlement of an intestate estate, “ the widow, besides her apparel and ornaments, shall be entitled to so much of the personal estate as the Judge shall determine to be necessary, according to the degree and estate of her husband, regard being had to the state of the family under her care.” Stat. c. 108, § 18.

The case at bar finds that the whole value of the personal estate of the deceased was but five hundred and sixty-one dollars, and to that extent only, can the allowance of the Judge of Probate to the widow be sustained. The allowance was so much “ of the personal estate,” and could not, of course, exceed the whole amount of the fund out of which it was payable. It must, of necessity, have that limitation. The administrator, Starrett, paid her five hundred and sixty dollars, and hence it follows, that the payment of four hundred and ninety-nine dollars, of the item of five hundred dollars, paid her by the defendant, was a wrongful appropriation of the money which had been raised by the sale of real estate for another purpose, and so much of that charge cannot be allowed him.

The case finds “ that the defendant has made use of the money belonging to the estate, in his business, during all the time, since he received it in 1843, and that the money was received for real estate sold under license of Court for the payment of debts, in which case the administrator must have given bond, as required by stat. c. 112, § 5, “that the proceeds of the sale should be truly applied and accounted for according to law,” and there can be no question that he is chargeable for lawful interest, on money thus raised and received, while he used it.

The decree of the Probate Court is reversed and the case is remanded for further proceedings accordingly.

Shepley, C. J., and Tenney, IIowaRD and Appleton, J. J., concurred.