Haven v. Haven

The rights of parties in the portraits furnish no occasion for farther administration of Ann's estate. The only parties having such rights are the plaintiff, the defendant and George G. Haven, who are tenants in common of the portraits; and nothing can be plainer in legal decision than the proposition that if an administrator were to be appointed, he could not, as against the tenants, accomplish anything. He would not be entitled even to the possession of the portraits, and if he should obtain it, the owners could maintain against him detinue, replevin, or trover. See Twombly v. Baker, Smith (N.H.) 123; Doe v. Guy, 3 East 120; Andrews v. Hunneman, 6 Pick. 126, 129; Hall v. Burgess, 5 Gray 12; Colwell v. Alger, 5 Gray 67, 69. The law never does a useless thing. Administrators will be appointed only when there is occasion for their appointment.

To the objection that in a specific devise of chattels the assent of the executor is necessary to enable the legatee rightfully to obtain possession, and that in this case no assent is either found or appears, it need only be said that if the assent of Ann's executors was necessary, it may now be presumed to have been given, after nearly fifty years of such possession by the legatees; but in addition to this, the executors must be deemed to have so assented by settling the estate without meddling with the portraits. Cray v. Willis, 2 P. Wms. 529, 531, 532.

If the question whether the defendant is an occupant of the mansion house, within the intent and meaning of the testatrix as expressed in her will, may properly be regarded as one of law, its decision is, for present purposes, unnecessary and immaterial. If he is such an occupant, he is of course entitled to the possession of the portraits by the express terms of the will; and if he is not such an occupant, he is none the less entitled to their possession by virtue of his rights as one of the tenants in common.

Exception overruled.

CHASE, J., did not sit: the others concurred.