Carter v. Jackson , 56 N.H. 364 ( 1876 )

I agree with with my brother STANLEY, that none of the exceptions with respect to the proceedings in the probate court, and the execution of the deed by Carter, as administrator of Wm. N. Roberts, to Adam Roberts, are well founded; and, so far, I do not understand there is any difference of opinion in the court.

The case then is, that Adam Roberts died seized of the locus in quo; that his estate had been decreed to be administered as insolvent before the act complained of, and that the administration was not at that time closed. It does not appear that the plaintiff was ever in possession of the land, either as administrator or otherwise; neither does it appear whether the estate is actually insolvent, nor whether this land is necessary to pay the debts. The defendants show no right, and their act was clearly a trespass. The question is, whether, upon the facts stated, the administrator of Adam Roberts can maintain trespass quare clausum fregit against them for it. I think he can.

"The administrator, as such, may maintain any action necessary and proper to be brought in relation to real estate of the deceased in cases of insolvency, until the administration is closed." Gen. Stats., ch. 179, sec. 19.

"The administrator shall receive the rents and profits of the real estate in case the estate in insolvent, and keep the same in repair, and account for the net proceeds thereof in his administration account." Gen. Stats., ch. 177, sec. 11.

"The estate of any person deceased may, on application of the administrator, be decreed to be administered as insolvent." Gen. Stats., ch. 180, sec. 1.

The argument, as I understand it, is, that, by the true construction of these statutes, the administrator is to recover the rents and profits and maintain actions, as provided in the two sections first above quoted, only when the estate is actually insolvent. If this be so, an inquiry of no inconsiderable practical importance seems to arise as to now it is to be ascertained whether the estate is or is not actually insolvent, in season so that the rights and interests of all the parties concerned may be secured. The statute seems to be imperative, that in case the estate is insolvent the administrator "shall" receive the rents and profits. How often does it happen that considerable time must elapse before it can be determined with any degree of certainty whether there is property enough to pay all the debts and expenses of administration? It may and often does happen that this fact cannot be fully determined until all the land has been sold: what is the situation of things in the meantime? — what the duties and liabilities of the administrator with respect to the rents and repairs of the real estate? Suppose the administrator, in the exercise of his best judgment, comes to the conclusion that by selling all the land there will be property enough to pay the debts and expenses of administration, and little or nothing over, — that is, he thinks the estate is barely solvent; and suppose, at the same time, it is obvious from the situation of the personal estate that the administration cannot be closed for a considerable length of time, — years, perhaps: are the heirs to go into possession and take the rents and profits? and are the hands of the administrator tied as to any efficient action in the interest of the creditors, for the protection of the real property, until the other affairs of the estate are brought into such shape that a license to sell the land may be obtained? In the case supposed, the administrator at once applies for and obtains a decree that the estate be administered as insolvent: the heirs may be numerous and widely scattered; their rights in and title to the land are subject to be divested by a sale under a license from the probate court for the payment of debts: was it the intention of the legislature that the administrator should be embarrassed in the performance of his office, and the estate be left in such situation that no one has a legal duty or a sufficient legal right or interest to look after and care for it during the time that must elapse before a license to sell can be procured? It seems to me it would require language very explicit and clear of doubt to warrant the inference of a legislative intent likely to produce results so inconvenient and absurd.

The statute is, that, on the application of the administrator, any estate may be decreed to be administered as insolvent. What does this mean? An estate which is in fact insolvent, is administered in a certain way; and one of the circumstances of such administration is, that the administrator takes the rents and profits of the land, and may maintain any action necessary and proper to be brought in relation to it. When the legislature enact that an estate, not in fact insolvent, may be decreed to be administered as insolvent, what can they mean unless it be that such estate may be administered in the way insolvent estates are administered? Upon what ground or by what warrant can the court say they meant it should be administered in the way estates actually insolvent are administered so far as regards the proof and collection of claims against it, but not in the way estates actually insolvent are administered in respect of the control and management of the land? I confess it is impossible for me to draw any such line; and I see no practicable was in which the statute can be interpreted and applied but to hold that it means what the terms in which it is expressed seen plainly to import, namely, that, when a decree is obtained that an estate be administered as insolvent, it is to be administered in the way insolvent estates are administered, and that this has reference to the whole of the estate, real as well as personal. By such a construction the duty of the administrator is made plain, and all conflict and contention between him and the heirs as to whether the estate is actually insolvent or not is avoided.

I have examined all the cases to which reference has been made without finding anything in either of them which, in my judgment, conflicts with this view, while there is certainly much in the cases of Lane v. Thompson,43 N.H. 320, Lane v. Thompson, 43 N.H. 326, Baker v. Haskell, 48 N.H. 426, Bergin v. McFarland, 26 N.H. 533, Moulton v. Wendell, 37 N.H. 408, Goodwin v. Milton, 25 N.H. 458, and probably others, to sustain it.

But it is not necessary to go so far as this in the present case. If we should admit that there may be cases where an estate is settled as insolvent, in which, before the close of the administration, the administrator could not maintain trespass against a stranger and a mere wrong-doer for an entry upon the land of his intestate, still it seems to me clear that the burden must be on him who undertakes to set up such facts in his defence to show them. We need go no further now than to hold that, in the absence of any facts to show that this action cannot be maintained in the name of the administrator, the decree that the estate be administered as insolvent gives him, prima facie, a sufficient title to maintain his suit; and I am of opinion that it must be so.

The plaintiff's exception must be sustained, and the order of nonsuit taken off.