Ela v. Ela , 70 N.H. 163 ( 1899 )

The finding of the court that the rental remained the same after 1873, and that George collected the rents during the years for which the plaintiffs seek to recover, was justified by the evidence. "A state of things once shown to exist is presumed to continue until something is shown to rebut the presumption." Wells v. Burbank, 17 N.H. 393, 409; State v. Colston, 53 N.H. 483. Not only was there no evidence that tended to rebut the presumption that George continued to collect the rents after 1873, but there was evidence that tended to its support. When the plaintiffs, on learning that George had not included the rents in his second account, made a demand upon him for their respective shares, George made an evasive answer, and to a subsequent like demand by letter no answer was returned. The demands thus made implied a claim that George had collected the rents since 1873. To this he was naturally called upon to make a reply, and his evasion and failure to explain was evidence of an admission on his part that he had made the collections in dispute. Corser v. Paul, 41 N.H. 24,29; Roberts v. Rice, 69 N.H. 472.

The plaintiffs say that the rents in question were collected by George, either as executor de son tort, or as a cotenant, and that in either event they are entitled to recover their shares from his estate. An executor de son tort is one who intermeddles with the personal property of a deceased's estate before an administrator has been appointed. Will Ex. (6th ed.) 296; Schoul. Ex. (2d ed.), s. 184; Leach v. Pillsbury, 15 N.H. 137, 139; Brown v. Leavitt, 26 N.H. 493, 494; Emery v. Berry, 28 N.H. 473, 481. The estate over which George assumed control was not personal property, and no intermeddling with real estate will constitute a person an executor de son tort. Schoul Ex. (2d ed.), s. 191; Mitchell v. Lunt, 4 Mass. 654; Campbell v. Sheldon, 13 Pick. 8, 22.

In the absence of evidence as to the law of Alabama respecting the descent of real estate, it is assumed that the common law obtains. At common law real estate does not pass to the administrator, but descends to the heirs, who hold it as tenants in common. If one tenant collects the rents, he is bound to account therefor to his cotenants in assumpsit or some other appropriate form of action. Gage v. Gage, 66 N.H. 282. The right of action in such case does not accrue until after a demand for an accounting has been made, "and the statute [of limitations] does not begin to run until the cause of action accrues." Hutchins v. Gilman, 9 N.H. 359, 363. Such a demand must be made within a reasonable time after the rents have been received; and what is a reasonable time is a question of fact to be determined at the trial term. Austin v. Ricker, 61 N.H. 97,99; Hoit v. Stratton Mills, 54 N.H. 109. If, upon further hearing, it is found that the plaintiffs' demands were seasonably made, they are entitled to recover their respective shares of the rents collected, with interest from the dates of demand. Livermore v. Rand, 26 N.H. 85, 91; Smith v. Davis, 45 N.H. 566, 570.

Case discharged.

BLODGETT, C.J., did not sit: the others concurred.