Allen v. Allen , 12 R.I. 301 ( 1879 )

This is a question of the effect of the conversion of real into personal estate. The estate was sold by the mortgagee after the death of the mortgagor, and the surplus is now in the hands of the mortgagee.

If sold before the death of the mortgagor, the surplus would have been treated as personal estate and have gone to the personal representatives. In the present case it is to be treated as real estate as to the rights of all parties.

If it had remained in the form of real estate at the death of the mortgagor, the heir or devisee would have been entitled to immediate possession, and would have retained possession until the executor or administrator took means to have it applied to the payment of debts.

We have decided in the case of Draper v. Barnes, ante, p. 156, that there is nothing in the language of any of our statutes to imply that the heir can be called to account for any rents or profits he may have received. The practical construction has always, we believe, been in accordance with that view.

We think, therefore, that the heirs or devisees, as the case may be, are entitled to the profits of the fund in the hands of the complainant already accrued or which may accrue until measures are taken to have it applied to the payment of debts, and that they should also be entitled to the fund on giving proper security to repay so much as may be needed, and whenever needed, for the payment of debts, or that it should be paid into the registry of the court and placed at interest until so needed; and that upon satisfactory proof by the administrator that the fund or any part of it is required for the payment of debts, the court will make the necessary order for payment by the heirs or devisees, or out of the registry of the court, in the same manner as the Court of Probate would have done if the fund had remained real estate.

The decree will be framed to carry out this opinion, and also provide that the cause be retained for such further order or decree as may be necessary. See Breevort v. M'Jimsey, 1 Edw. Ch. 551.

After the foregoing opinion had been given, the parties stated to the court that the time within which appeals could be taken from the report of the commissioners on the estate of the deceased which had been represented insolvent had expired, Gen. Stat. R.I. cap. 175, § 13, and that the administrator, finding that the fund was not needed to pay the debts of the estate, assented to the distribution of the fund according to the provisions of George W.T. Allen's will.

On motion for a decree to this effect: