Main v. Norman , 130 Conn. 600 ( 1944 )

This action is brought against the defendant as administrator of the estate of Thomas B. Hewitt. The complaint alleges that the plaintiff and "the estate of Thomas B. Hewitt" have ever since the latter's death owned adjoining premises; that before his death, one-half of the fence on the line between the properties had been set to him to maintain; that, because of the defendant's failure properly to maintain the portion of the fence set to Hewitt, the plaintiff, since Hewitt's death, has been deprived of the income from his land and has lost a large number of sheep; and that on August 31, 1942, the plaintiff presented to the administrator a written claim for these damages which was disallowed. At the close of the evidence the trial court directed a verdict for the defendant and from the refusal to set it aside the plaintiff has appealed.

Hewitt died June 6, 1921. The plaintiff, in his testimony, admitted that the fence was in good order at that time. Under the undisputed evidence he offered, the loss of sheep occurred in 1925, and his claim for loss of use of his land was, by the allegations of the complaint, for a period subsequent to Hewitt's death. Neither could afford the basis of a claim by the plaintiff against Hewitt's estate or of a suit by him against the administrator as such. A demand for damages due to a neglect such as that alleged in this case constitutes a claim against the estate of a deceased landowner only if the neglect occurred in his lifetime. The only matters arising out of the acts of an administrator for which an action lies against him as such are those "growing out of moneys paid or services rendered for the estate." General Statutes, 5640. If the neglect in this case were that of the administrator, he could be sued only in his individual capacity, with the right on his part, should he be called upon to make payment, to claim a credit in his accounting to the Probate Court. Hewitt v. Beattie, 106 Conn. 602, 612,138 A. 795. All other considerations aside, the plaintiff, for these reasons, was not entitled to recover in this action and the trial court committed no error in refusing to set the verdict aside.

There is no error.