The act regulating dower provides: ' That the widow of any person dying shall be endowed of one full and equal third part of lands, tenements and real estate of which her husband was seized, as an estate of inheritance, at any time during the coverture." Swan's Stat. 296. It follows, that if turnpike and railroad shares are real estate, every widow whose husband was, at any time during the coverture, the owner of such shares, is entitled to dower therein, although he may have sold or transferred the same; unless the transfer was by deed of the husband and wife, duly executed, attested and acknowledged. We cannot imagine that the Legislature ever intended any such thing. * * *
In whatever way we view the case, whether upon adjudication, reason or our statute laws, we arrive at the conclusion that the shares in question are personal property. The bill must therefore be dismissed.
4. Land Treated as Money by "Equitable Conversion."
3 Wheaton (U. S.), 563. - 1818.
[Reported herein at p. 71.]
II. Leading differences in the law as between real and personal property.
1. In the "Law of Succession" to Estates of Deceased Persons.
29 Ohio State, 230. - 1876.
Petition in the Court of Common Pleas to compel the widow and heirs-at-law of Thomas Dugan, deceased, to pay to Overturf, as administrator, rents accrued since Dugan's death; also to enjoin them from collecting any further rents, and the tenants from paying such rents to them. Decree in favor of the petitioner. On appeal to the District Court such decree was reversed and the injunctions were dissolved. The administrator now moves for leave to file petition in error.
Gilmore, J. - There is no controversy as to the facts in the case; they are admitted to be as stated in the pleadings.
The intestate having died in the month of November, 1873, there is no question made as to the right of the administrator to take, as assets, the emblements or crops growing upon the lands for the then current year, viz., from March 1, 1873, to March 1, 1874.
But the real estate of the intestate not having been sold, the controversy relates to the accruing rents for the succeeding year, i. e., from March 1, 1874, to March 1, 1875.
On the part of the administrator, it is claimed that on the admitted facts in the case, he, as trustee for the creditors, is entitled to these rents. On the other hand, the heirs claim that, being the owners and in possession of the lands, they are entitled to these rents in their own right, subject to the widow's interest therein.
Upon the facts admitted, which of these respective claims will the law recognize as valid?
1. By an unbroken line of decisions in our State it is conclusively settled: That the real estate of an intestate descends at once to his legal heirs; and the legal title is vested in them, subject only to the right of the administrator to sell the same for the payment of the debts, in the manner prescribed by law.
From this it is at once apparent that the administrator of an intestate has no interest whatever in the lands of which his intestate died seized, except the right of sale for the purpose specified. Not having the title, he cannot, in the absence of statutory authority, take possession of the lands, and no such authority is given to him. The only power over the lands with which he is clothed is a power to sell the same to pay the debts of his intestate, and this power can only be exercised and executed under the sanction of a court of competent jurisdiction, in pursuance of statutory authority, and a sale of his intestate's lands, made without such sanction, would be void. The special case provided for by the 120th section of the administration law (S. & C. 590) forms no exception to the general rule, for there the intestate having transferred his land to defraud his creditors, the title could not descend to his heirs. It is the proceeds of the sale of the land alone, and not the land itself, that the administrator can take as against the heirs to whom the land descended.
2. The title to the real estate, which the heir takes by descent, entitles him to the possession of his ancestor; and this draws to it the right to receive, as against the administrator, the rents and profits of the land (emblements excepted) during the continuance of his possession, which may be from the death of the ancestor until the actual sale of the land by the administrator for the payment of the debts of his intestate.
The above propositions are perfectly consistent with the decisions of this court in reference to the debts of the intestate being a charge or lien on the land; and that this charge or lien is paramount to the rights of the heir-at-law, and that it can only be removed by the payment of the debts, or by the lapse of time. Stiver v. Stiver, 8 Ohio, 221; Ramsdall v. Craighill, 9 Ohio, 197; Shelden v. Newton, 3 Ohio St. 504.
This charge or lien is a legal incident to the ownership of the intestate, and operates in favor of his creditors and for their security. The administrator has no power over this lien or charge; he cannot by his individual act either release the land from it, in favor of the heir, or enlarge its operations in favor of the creditors of the estate. As has been said, he can only obtain the proceeds of the land by an unauthorized sale.
Neither the filing of the petition to sell the lands, before the rents in question commenced accruing; nor the order of sale granted by the court shortly after they began to accrue; nor the declaring of the estate probably insolvent by the proper court, had the effect of enlarging the rights of the administrator in reference to the accruing rents. The heirs were still legally in possession as owners of the land, and entitled to the rents; and as has been said, the lien in favor of the creditors was upon the land itself, and not upon the rents accruing during the time intervening between the death of the intestate and the sale by the administrator. Rents thus accruing are not and cannot be said to be assets belonging to the administrator of the intestate's estate, for they were not in existence at his death, and the creditors of the intestate cannot claim them for the payment of his debts, for they never belonged to him. They therefore must belong to the owners of the land who are the widow and heirs.