Mills v. Merryman , 49 Me. 65 ( 1861 )

The opinion of the Court was drawn up by

Kent; J.

This action is based upon a count for money paid by mistake. The plaintiff, as executor of John Bennock, received certain moneys for rent of the real estate of the testator, which accrued after Jus death. The estate is not represented as insolvent. The real estate, for the use of which the rent was paid to the executor, was, in the division, assigned to the defendant, Mrs. Merryman. The executor paid over the rent received to her guardian, who paid it to defendant. The plaintiff now claims to recover back at least forty-four dollars and twenty cents, the amount paid by him to Daniel White and one Davis, who had claims against the estate, arising from receipts and payments in relation to this land. The claim of White was for rent of a part of this lot, which he owned in common with testator, and which testator had collected. The claim of Davis was for testator’s portion of taxes, which he, Davis, being also interested in the land, had paid. Both these claims were existing against the testator and his estate at and after his death. They were simply debts due from the estate, and created no lien on the land, and no right to the rents afterwards received. It was the duty of the executor to pay them out of the general fund and assets, in the same manner as he paid other simple contract debts. lie could not properly apply the rents received for occupancy, after the death of the testator, to this purpose.

The rents of real estate accruing before the death go to the executor, as part of the estate. But all rents accruing after the death are incident to the reversion, and go to the heirs, who take the land by devise or descent. If collected by the executor, he is bound to pay them to the heirs as part of the inheritance. These principles are fully stated in the case of Stinson v. Stinson, 38 Maine, 593. In the case before us, the rent received was paid to the heir to whom this land was assigned in the division.

This action is in the name of the plaintiff as an individual, and not in his capacity as executor. lie claims, apparently, to recover back the amounts he paid to White and Davis, on the ground that he paid them to defendant by mistake, having the right, as against the heirs, to retain those sums for the purpose of paying them. We have seen that he had no such right.

If there is any question whether the defendant had a right to receive and retain it all, it can only arise between the heirs, and could, at most, involve the small portion of the yearly rent between May 1st and June 23d, 1856.

Plaintiff nonsuit.

Tenney, C. J., Bice, Affeeton and May, JJ., concurred.