Mansfield v. Holton , 74 N.H. 417 ( 1907 )

The plaintiff takes the position, in his motion for rehearing, that the case finds that the estate was actually insolvent; and that as the administrator has received the rents and profits of the real estate under an agreement with the heir that he should apply the net income thereof in payment of the debts of the estate, jurisdiction is conferred, by section 13, chapter 189, Public Statutes, upon the probate court to determine the question of net income, in the settlement of the administrator's account. A sufficient answer to this contention is that the case does not find that the estate was actually insolvent. The finding upon this subject was simply that the personal property belonging to the estate was insufficient to pay the debts, that a part of the Massachusetts real estate had been sold, and that all the claims of creditors had been paid. This is equivalent to a finding that the estate was solvent; and when it is recalled that the New Hampshire real estate and a part of that in Massachusetts now remains undisposed of, and that the heir is the only party contesting the plaintiff's claim, it may well be inferred that the estate was actually solvent.

As the estate was solvent and was not decreed to be administered in the insolvent course, the question presented is whether in such case, the administrator having received the rents and profits of the real estate under an agreement with the heir to apply the net income in payment of the debts of the estate, the probate court has jurisdiction to determine the question of net income. The provision of law under which jurisdiction is claimed is section 13, chapter 189, Public Statutes. But this section does not invest the probate court with authority to determine the net income received by an administrator from the rents and profits of real estate when the estate is solvent and there is no decree that it be administered in the insolvent course. In such case the rents and profits belong to the heir; and if the administrator receives them, he does so, not officially, but in his private capacity, with or without the authority of the heir. Gregg v. Currier,36 N.H. 200, 208; Lucy v. Lucy, 55 N.H. 9; Perkins v. Perkins, 58 N.H. 405; Ayers v. Laighton, 73 N.H. 487, 489; Hoyt Prob. Pr. 167, 225, 226. An agreement of the parties that the net income of the real estate shall be applied by the administrator in payment of the debts of the estate will not invest the probate court with authority to determine the question, if such was the intention; for jurisdiction of the subject-matter of a controversy cannot be conferred upon a court in that way, and the right to object to the want of it cannot be lost by acquiescence or neglect. Wright v. Cobleigh, 21 N.H. 339, 341; State v. Richmond, 26 N.H. 232, 239, 240; Tebbetts v. Tilton, 31 N.H. 273, 289; Carlisle v. Weston, 21 Pick. 535, 537; Chemung Bank v. Judson, 8 N.Y. 254; In re Walker's Will, 136 N.Y. 20; Collins v. Keller, 58 N.J. Law 429; 11 Cyc. 673, 674, 783, 917.

The substance of the decisions in Lane v. Thompson, 43 N.H. 326, and Ayers v. Laighton, 73 N.H. 487, as to the construction of the section of the statute here under consideration, is that the phrase "in case the estate is insolvent" does not mean actual insolvency, but merely "the method adopted when the estate is being settled in the insolvent course"; that whether the estate is solvent or actually insolvent, the powers and duties of the administrator in relation to the real estate and its income do not arise until the estate is decreed to be so administered; and that meanwhile the estate is in the heirs. In the former decision it is expressly stated that "the statute does not take away from the heirs the right of possession until [there is] a decree that the estate be administered as insolvent," and that "the powers and duties of administrators in relation to the real estate" do not arise "until an estate is so administered." And the language of the court in Goodwin v. Milton, 25 N.H. 474, and in Plumruer v. Plumruer, 30 N.H. 566, wherein the impression is conveyed that in case of actual insolvency the heir never has a right to the possession of real estate, is questioned, and is said not to have been "intended as a statement a general legal proposition, but as mere commentary upon the ultimate effect of actual insolvency."

As the powers and duties of an administrator with reference to the possession and income of real estate under the statute do not arise until the particular estate is decreed to be administered in the insolvent course, so, too, the jurisdiction of the probate court to administer upon the estate in that manner does not attach so as to authorize an inquiry into the management of the real estate until such a decree is made; and jurisdiction having once attached, it is not tentative merely, and liable to be defeated upon its being shown that the estate is in fact solvent, but continues with full force until the administration is closed or the decree that it be administered as insolvent is set aside. The decree, so long as it stands and the administration is not closed, is conclusive upon the parties in interest as to the powers and duties of the administrator with reference to the real estate and of the jurisdiction of the court over the same, and is not merely prima facie evidence of their existence. King v. Chase, 15 N.H. 9; MacDonald v. Railway, 71 N.H. 448; State v. Corron, 73 N.H. 434.

Motion for rehearing denied.

All concurred.