Flood v. Pilgrim , 32 Wis. 376 ( 1873 )

Lyon, J.

I. At the time the plaintiff was appointed by the probate court administrator of the estate of Nicholas Ned-ley, deceased, there was no such estate. The title to the real estate of the testator had passed, by virtue of the probate of his last will and testament, to the devisees therein named, and there was no personal property left which had belonged to the deceased in his lifetime. There is no pretense that there were any debts or claims chargeable against or due to the estate. In a word, there was nothing to administer ; and the appointment of an administrator was entirely unnecessary. More than this. I am strongly inclined to think that such appointment was absolutely null and void. The statute only confers upon the county court power to appoint an administrator of an estate; and where there is no estate, it would seem very clear that no such power can exist. But it may he that the county court has adjudicated that there was then such an estate, in which case, probably, such adjudication would be conclusive.

II. But, conceding that the county court had power to do so, and that the plaintiff is the lawful administrator of the estate of Nicholas Nedley, deceased, the result is the same. The only authority for bringing this action which can be invoked with any reasonable show of success by the plaintiff, is the following provision of the R. S., ch. 100, sec. 7: “ The executor or administrator shall have a right to the possession of all the real as well as personal estate of the deceased, and may receive the rents, issues and profits of the real estate until the estate shall have hem settled, or until delivered over, by order of the county court, to the heirs or devisees.”

As a matter of course, no executor or administrator can successfully assert the right to the possession of the real estate of a testator or intestate under this statute, if such estate has been settled ; and if the right does not exist under the statute, it does not exist at all ; for at the common law the executor or administrator had nothing whatever to do with the real estate of which the testator or intestate died seized. Jones v. Billstein, 28 Wis., 221.

This estate had been settled long before letters of administration were granted to the plaintiff. True, it had not been settled through the instrumentality of formal proceedings in the county court; and the statute does not, in terms, require that it should have been so settled in order to cut off the right of the administrator to the possession of the land. The intent doubtless is, to place the whole estate, real and personal, in the possession and under the control of the executor or administrator in proper cases to enable him to pay debts against the estate and legacies. Where there are no such debts or legacies to be paid, there is no valid reason why the executor or administrator should have the possession of the real estate. Hence the provision that if the estate is settled, that is, if thére are no claims against it, none in its favor, no personal property belonging to it, and the real property which once constituted a portion of it has passed into the possession of the devisees thereof and those claiming under them,— the executor or administrator has no longer any right to the possession of the real estate. To hold that the statute is not applicable to this case because those results were not worked out through the slow and expensive processes of administration, and probate orders and decrees, would be to sacrifice substance to mere form, and to disregard entirely the plain and obvious intention of the statute. The equities of this case are not sufficiently strong in favor of the plaintiff to tempt me to do this. I think, therefore, conceding the plaintiff to be the lawful administrator, that the undisputed facts in the case demonstrate- that he is not entitled, as such administrator, to the possession of the land in controversy.

III. The real object of this action is to determine whether the title of the devisees to the land in controversy, which they took under the will of their devisor, was divested by the alleged conveyance executed by the guardian of such devisees to the defendant. This is a question in which the administrator of the estate of Nicholas Nedley, as such, has not the slightest interest. It is no part of the legal functions of an executor or administrator to vindicate the title of devisees to lands devised by the testator, especially if such title has been clouded or complicated by acts which occurred long after the same vested in the devisee under the will, and to subject the estate to the expenses thereof, as he necessarily must if he does so. If the administrator, as such, may maintain this action to establish the title of these devisees as against the defendant, why may he not maintain an action to get rid of a tax title on the same land executed since the probate of the will, or to remove any other cloud from the title of the devisees to such land, which accrued after they became the owners thereof ? And if so, why not at the expense of the estate ?

If those devisees think that the person who assumed to act as their guardian, and as such guardian to convey the land in controversy to the defendant, had no lawful authority to do so, they may bring actions, in their own names or by guardian as the case may require, to settle that question. But I can perceive no good reason for resorting to the process of an expensive and unnecessary administration to work out the same result; and I know of no authority of law for so doing.

I conclude that the circuit court properly directed a verdict for the defendant, and that the judgment appealed from should be affirmed.

By the Court.— Judgment affirmed.