The fact that an administrator may be ordered by the court to include in the inventory and appraisement, the real estate of the intestate, as provided in sections 3 and 29 of the administration act (S. & C. 567, 572), does not affect the question. The object of this legislation was not to enlarge the powers of the administrator over the real estate, but to put the court in possession of the information, with a view of enabling it to more intelligently discharge its duties in supervising the conduct of the administrator.
Sections 57 and 113 of the act (S. & C. 576, 587) require the administrator to account for after-acquired assets; but the rents of the real estate that descended to the heirs, accruing after the descent was cast, not being assets of the estate, these sections impose no duties upon the administrator in reference to them.
The lands in question were all incumbered by mortgages executed by the intestate, the conditions of which respectively were broken at the time of his death. None of the mortgagees had commenced proceedings in foreclosure, or asked the appointment of a receiver to take charge of the lands and rents. Other debts to large amounts are unsecured.
The plaintiff in error claims that: "Upon general equity principles an administrator who stands as trustee for creditors may come into court for instructions without reference to the statute, and from his showing, if it appears that the estate is insolvent, and that the naked land with the other assets will not pay the debts, the accruing rents can be appropriated for this purpose."
There are no authorities cited in support of this proposition. While it may be conceded that the mortgagees, or any of them, might go into a court of equity and assert their rights under their mortgages, after condition broken, and have a receiver appointed to take charge of the lands and collect accruing rents for their benefit, yet the right to this relief would rest upon the fact that they were the owners of the legal title, but not having the right to the possession under our present practice, equity would give them that which is usually an incident to possession - that is, the rents and profits until foreclosure and sale. But general creditors would have no such equitable right by reason of the fact that their debts are a charge or lien upon the lands of the intestate in the hands of the heirs. They cannot proceed directly against the lands. Their rights must be wrought out through the administrator, and, as we have seen, his rights, powers, and duties are all strictly statutory, and no statute exists giving the administrator a right to go into a court of equity and compel the heirs to give up rents that legally belong to them, for the benefit of the creditors of their ancestor.
42 Mississippi, 465. - 1869. [Reported herein at p. 42.] 1
2. In the Law of Dower and Curtesy. .
33 Connecticut, 314. - 1886. [Reported herein at p. 8.]
13 Pickering, (Mass.), 154. - 1832.
Appeal from a decree of the judge of probate ordering distribution of the balance in the hands of Hapgood as executor of the will of Jonathan Grout.
The following clause is contained in the will: - "The rest and residue of my estate I give, after paying my debts, to my daughters Sarah Brooks, Betsey Hapgood, Lydia Houghton, Dolly Hapgood, and Sukey Grout, always providing that if this residue shall exceed one thousand dollars in value to each daughter, then the overplus shall be divided among all my children, after first taking from such overplus enough to clear the homestead farm for John, if not otherwise done."
The executor represented the estate as insolvent and took proper steps to have the real estate sold to pay the debts, but as a result of the sales he obtained title to it himself personally. The estate was not in fact insolvent, and a considerable sum, the proceeds of the real estate sales, remains to be divided.
Lydia Houghton died some time after her father's decease, leaving, her surviving, her husband, the appellant, and two children. Further facts appear in the opinion.
Wilde, J., delivered the opinion of the court. The questions arising upon this appeal depend upon the construction of a clause in the last will and testament of the late Jonathan Grout, which is deemed doubtful, and upon the proceedings of the executor in administering the estate, which for many years past have proved such a never-failing fountain of controversy in the courts of this commonwealth, and in those of an adjoining State, where a considerable portion of the estate of the testator was situate.
Upon the facts in the case the counsel for the appellant has endeavored to maintain two positions: - 1. That the residuary clause, at least to the extent of $1,000, is to be construed as a pecuniary legacy, and so vested in the appellant. 2. If it is not so construed, but is considered as a residuary devise of real estate, then that the land devised was converted into money, with the consent, of I.ydia Houghton, and that it thereupon vested in her husband, the appellant.
Neither of these positions can, we think, be maintained.
The testator's property consisted principally of real estate, the personal estate being insufficient to pay his debts. The residuary clause, therefore, is in express language a disposition and devise of real estate, and there is nothing to indicate an intention of giving a pecuniary legacy.
It has been said, that if the lands had not been sold, it would be difficult, if not impossible, to execute the will, construing the residuary clause as a devise of lands; but we can perceive no impossibility, nor, indeed, the slightest difficulty in making a distribution of the property according to the terms of the will. The lands might be appraised, and if the appraised value should not exceed the sum of $5,000, or $1,000 to each daughter, then the whole would vest in them in equal shares. If the value should exceed that amount, then so much of the land as would be of that value might be set off to them, leaving the residue to be divided among all the children.