Lyon v. Register

Mabry, C. J.: In April, 1888, the appellee filed a bill in chancery against Elizabeth A. Hendricks, and several other persons for the purpose of having certain real estate described in the bill partitioned among the complainant and the defendants. Complainant alleged that he was the owner of one-sixth undivided interest in the land, and the proportionate shares owned, or claimed to be owned, by the defendants are set out. Complainant’s interest is derived as follows: William I. Hendricks, it is alleged, died in 1878, seized 'and possessed of the land, and leaving as his widow Elizabeth A. Hendricks, and seven children. One of the children, Emma S. Hendricks, intermarried with complainant in 1884, and died in 1886, leaving no" child or children, and complainant was the sole heir of his deceased wife. The surviving children, except one who died while a minor, and without issue, and many others alleged to be claimants of portions of the land, are made defendants along with the widow, Elizabeth A. Hendricks. The widow, Elizabeth A., who, it is alleged, made claim to all the land, died after the filing of the bill and service of process on her. Thereafter, upon pro *281 ■duction of a certified copy of letters of executorship on the will of said decedent, William W. Lyon and Gray S. Hendricks, who are the executors named, were made parties defendant as such executors. A copy of the will is not before us, and the letters produced recite that Lyon and Hendricks were named executors in the will, and they are authorized as such executors to. administer all and singular the goods and chattels, rights and credits of the testatrix, and pay her debts, if any, and also have and hold, for the purposes directed in the will, all the estate of the testatrix during the continuance of their administration, or until the power and authority granted them should be revoked according to law. The executors named interposed a plea to the effect that in April, 1852, William I. Hendricks executed and delivered to his wife, Elizabeth A., a deed, whereby he conveyed to her all the real estate mentioned in the bill, and that said deed was recorded in the office of Clerk of the Circuit Court for Duval county, Florida, on the 28th day of April, 1852. By virtue of this deed, it is alleged that the wife, Elizabeth A. Hendricks, became seized of an estate in fee in all the said lands, except such as she had conveyed, and that she continued so seized until her death. That neither complainant nor any of the defendants, except those mentioned in the bill as having distinct parcels of the land, had any right, title or interest in the lands sought by the bill to be partitioned; and further, that said Elizabeth A., since the death of her said husband, remained continuously seized and possessed of said real estate in her own right, and that the various parcels alleged to be held by the other defendants are held by them under deeds lawfully executed by her foi» valuable consideration. The cause being heard upon the *282 plea of the executors, the same was overruled on the ground that the deed therein mentioned was void. The executors, Lyon and Hendricks, appealed, and they insist here through their counsel that the ruling of the court was erroneous. Suit involving a partition of the same land was originally instituted in the name of Mrs. Register in her life-time, and she having died pending the suit, J - C. Gfreeley was made her administrator. The result of the attempt to carry on the suit in the administrator’s name is recorded in the case of Greeley vs. Hendricks, 23 Fla. 366, 2 South. Rep. 620. In that case it was held, as it had been decided before in Whitlock vs. Willard, 18 Fla. 156, that an administrator can not maintain a suit for partition of land under the statutes of this State. In proceedings simply to partition real estate an administrator is no more a necessary or proper party defendant than he, is complainant. Foster vs. Newton, 46 Miss. 661; Freeman on Cotenancy and Partition, sec. 471. In case of the death of a cotenant his heirs or devisees become cotenants with the other joint owners, and where such death happens during the pendency of a suit for partition, it is necessary that his heirs or devisees be made parties defendant before proceeding with the partition. Pearson vs. Carlton, 18 S. C. 47; Requa vs. Holmes, 16 N. Y. 193; S. C. 26 N. Y. 338; Ewald vs. Corbett, 32 Cal. 493. It is true that under our statute making real estate assets for the payment of debts an administrator could maintain ejectment for the possession of such estate, but this-did not invest him with title so as to give him the status ef a necessary or proper party in mere partition proceedings. Whether an administrator can under *283 our present statute maintain ejectment, lias not been decided. But the administrator’s right to possession under the former statute did not divest the heirs of their title in fee, and such possession was for administrative purposes only. It is said in Whitlock vs. Willard, supra, in speaking of the right of an administrator to maintain a suit for partition, that “he is not either a joint tenant, a tenant in common or coparcener, nor do his rights and powers as to the real estate involve the rights of partition.” At common law the executor equally with the administrator is the representative of the personalty only, and by virtue of his-office he has no right to the lands of his testator. Tindal vs. Drake, 51 Ala. 584. There is nothing in the record to show that the executors, Lyon and Hendricks, were invested by the will with any such title as to make them proper parties in their representative capacity in the presént proceedings. They appear here simply as executors of the estate of Elizabeth Hendricks, deceased, and their powers as such over the realty do not involve the right of partition. The Circuit Judge determined the validity of the deed from William I. Hendricks to his wife on the plea of her executors alone, without any pleading on the part of any of the other parties to the suit. Some forty persons are alleged to have interests in the land, and are named as defendants in the bill, but there is-nothing to show that any of them, except Elizabeth A. Hendricks, were ever served with process, appeared in the suit, or filed any pleading therein. The rights of these parties can not be determined in their absence and upon a plea of parties who have no right, so far as the record shows, to represent the legal title. The question argued by counsel for appellants — the legal sufficiency of the deed from the husband, Wil *284 liam I. Hendricks, to Ms wife — can not be considered on the record, for the reason that necessary and indispensable parties were not before the court; and the ■decree rendered was, for that reason, erroneous. The decree appealed from will be reversed and the ■cause remanded for such further proceedings as may be conformable|to law. An order will be entered accordingly.